l4«»M*wl»4lU»»»'l«>*«*1f*f*' 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


CASES 


ON 


THE  LAW  OF  CARRIERS 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


BY 


FREDERICK'  GREEN 

PROFESSOR  OF  LAW,   UNIVERSITY  OF  ILLINOIS 


AMERICAN  CASEBOOK  SERIES 
JAMES  BROWN  SCOTT 

GENERAL  EDITOR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1910 


r 


Copyright,  1910 

BY 

WEST  PUBLISHING  COMPANY 
(Gbeex,  Law  Cabb.) 


THE  AMERICAN  CASEBOOK 
SERIES 


For  years  past  the  science  of  law  has  been  taught  by  lectures,  the 
use  of  text-books  and  more  recently  by  the  detailed  study,  in  the 
class-room,  of  selected  cases. 

Each  method  has  its  advocates,  but  it  is  generally  agreed  that  the 
lecture  system  should  be  discarded  because  in  it  the  lecturer  does 
the  work  and  the  student  is  either  a  willing  receptacle  or  offers  a 
passive  resistance.  It  is  not  too  much  to  say  that  the  lecture  system 
is  doomed. 

Instruction  by  the  means  of  text-books  as  a  supplement  or  sub- 
stitute for  the  formal  lecture  has  made  its  formal  entry  into  the  educa- 
tional world  and  obtains  widely ;  but  the  system  is  faulty  and  must  pass 
away  as  the  exclusive  means  of  studying  and  teaching  law.  It  is  an 
improvement  on  the  formal  lecture  in  that  the  student  works,  but  if  it 
cannot  be  said  that  he  works  to  no  purpose,  it  is  a  fact  that  he  works 
from  the  wrong  end.  The  rule  is  learned  without  the  reason,  or  both 
rule  and  reason  are  stated  in  the  abstract  as  the  resultant  rather  than 
as  the  process.  If  we  forget  the  rule  \xe  cannot  solve  the  problem;  if 
we  have  learned  to  solve  the  problem  it  is  a  simple  matter  to  formulate 
a  rule  of  our  own.  The  text-book  method  may  strengthen  the  mem- 
ory; it  may  not  train  the  mind,  nor  does  it  necessarily  strengthen  it. 
A  text,  if  it  be  short,  is  at  best  a  summary,  and  a  summary  presup- 
poses previous  knowledge. 

If,  however,  law  be  considered  as  a  science  rather  than  a  collection 
of  arbitrary  rules  and  regulations,  it  follows  that  it  should  be  studied 
as  a  science.  Thus  to  state  the  problem  is  to  solve  it ;  the  laboratory 
method  has  displaced  the  lecture,  and  the  text  yields  to  the  actual 
experiment.  The  law  reports  are  in  more  senses  than  one  books  of 
experiments,  and,  by  studying  the  actual  case,  the  student  co-operates 
with  the  judge  and  works  out  the  conclusion  however  complicated 
the  facts  or  the  principles  involved.  A  study  of  cases  arranged  his- 
torically develops  the  knowledge  of  the  law,  and  each  case  is  seen  to 
be  not  an  isolated  fact  but  a  necessary  link  in  the  chain  of  develop- 
ment. The  study  of  the  case  is  clearly  the  most  practical  method, 
for  the  student  already  does  in  his  undergraduate  days  what  he  must 
do  all  his  life;  it  is  curiously  the  most  theoretical  and  the  most  prac- 
tical. For  a  discussion  of  the  case  in  all  its  parts  develops  analysis, 
the  comparison  of  many  cases  establishes  a  general  principle,  and 

(iu) 


iV  PREFACE. 

the  arrangement  and  classification  of  principles  dealing  with  a  sub- 
ject make  the  law  on  that  subject. 

In  this  way  traimng  and  knowledge,  the  means  and  the  end  of 
legal  study,  go  hand  and  hand. 

The  obvious  advantages  of  the  study  of  law  by  means  of  selected 
cases  make  its  universal  adoption  a  mere  question  of  time. 

The  only  serious  objections  made  to  the  case  method  are  that  it  takes 
too  much  time  to  give  a  student  the  requisite  knowledge  of  the  sub- 
ject in  this  way  and  that  the  system  loses  sight  of  the  difference  be- 
tween the  preparation  of  the  student  and  the  lifelong  training  of  the 
lawyer.  Many  collections  of  cases  seem  open  to  these  objections, 
for  they  are  so  bulky  that  it  is  impossible  to  cover  a  particular  sub- 
ject with  them  in  the  time  ordinarily  allotted  to  it  in  the  class.  In 
this  way  the  student  discusses  only  a  part  of  a  subject.  His  knowl- 
edge is  thorough  as  far  as  it  goes,  but  it  is  incomplete  and  frag- 
mentary. The  knowledge  of  the  subject  as  a  whole  is  deliberately 
sacrificed  to  training  in  a  part  of  the  subject. 

It  would  seem  axiomatic  that  the  size  of  the  casebook  should  cor- 
respond in  general  to  the  amount  of  time  at  the  disposal  of  instructor 
and  student.  As  the  time  element  is,  in  most  cases,  a  nonexpansive 
quantity,  it  necessarily  follows  that,  if  only  a  half  to  two-thirds  of  the 
cases  in  the  present  collections  can  be  discussed  in  class,  the  pres- 
ent casebooks  are  a  third  to  a  half  too  long.  From  a  purely  practical 
and  economic  standpoint  it  is  a  mistake  to  ask  students  to  pay  for 
1,200  pages  when  they  can  only  use  600,  and  it  must  be  remembered 
that  in  many  schools,  and  with  many  students  in  all  schools,  the  mat- 
ter of  the  cost  of  casebooks  is  important.  Therefore,  for  purely 
practical  reasons,  it  is  believed  that  there  is  a  demand  for  casebooks 
physically  adapted  and  intended  for  use  as  a  whole  in  the  class-room. 

But  aside  from  this,  as  has  been  said,  the  existing  plan  sacrifices 
knowledge  to  training.  It  is  not  denied  that  training  is  important, 
nor  that  for  a  law  student,  considering  the  small  amount  of  actual 
knowledge  the  school  can  hope  to  give  him  in  comparison  with  the 
vast  and  daily  growing  body  of  the  law,  it  is  more  important  than 
mere  knowledge.  It  is,  however,  confidently  asserted  that  knowledge 
is,  after  all,  not  unimportant,  and  that,  in  the  inevitable  compromise 
between  training  and  knowledge,  the  present  casebooks  not  only  de- 
vote too  little  attention  relatively  to  the  inculcation  of  knowledge, 
but  that  they  sacrifice  unnecessarily  knowledge  to  training.  It  is  be- 
lieved that  a  greater  effort  should  be  made  to  cover  the  general  prin- 
ciples of  a  given  subject  in  the  time  allotted,  even  at  the  expense  of 
a  considerable  sacrifice  of  detail.  But  in  this  proposed  readjustment 
of  the  means  to  the  end,  the  fundamental  fact  cannot  be  overlooked 
that  law  is  a  developing  science  and  that  its  present  can  only  be  un- 
derstood through  the  medium  of  its  past.  It  is  recognized  as  im- 
perative that  a  sufficient  number  of  cases  be  given  under  each  topic 


PREFACE.  V 

treated  to  afford  a  basis  for  comparison  and  discrimination ;  to  show 
the  development  of  the  law  of  the  particular  topic  under  discussion ; 
and  to  afford  the  mental  training  for  which  the  case  system  neces- 
sarily stands.  To  take  a  familiar,  illustration:  If  it  is  proposed  to 
include  in  a  casebook  on  Criminal  Law  one  case  on  abortion,  one  on 
libel,  two  on  perjury,  one  on  larceny  from  an  office,  and  if  in  order  to 
do  this  it  is  necessary  to  limit  the  number  of  cases  on  specific  intent  to 
such  a  degree  as  to  leave  too  few  on  this  topic  to  develop  it  fully 
and  to  furnish  the  student  with  training,  then  the  subjects  of  abor- 
tion, libel,  perjury,  and  larceny  from  an  office  should  be  wholly  omit- 
ted. The  student  must  needs  acquire  an  adequate  knowledge  of  these 
subjects,  but  the  training  already  had  in  the  underlying  principles  of 
criminal  law  will  render  the  acquisition  of  this  knowledge  compara- 
tively easy.  The  exercise  of  a  wise  discretion  would  treat  fundamen- 
tals thoroughly :  principle  should  not  yield  to  detail. 

Impressed  by  the  excellence  of  the  case  system  as  a  means  of  legal 
education,  but  convinced  that  no  satisfactory  adjustment  of  the  con- 
flict between  training  and  knowledge  under  existing  time  restrictions 
has  yet  been  found,  the  General  Editor  takes  pleasure  in  announcing 
a  series  of  scholarly  casebooks,  prepared  with  special  reference  to 
the  needs  and  limitations  of  the  class-room,  on  the  fundamental  sub- 
jects of  legal  education,  which,  through  a  judicious  rearrangement 
of  emphasis,  shall  provide  adequate  training  combined  with  a  thor- 
ough knowledge  of  the  general  principles  of  the  subject.  The  collec- 
tion will  develop  the  law  historically  and  scientifically;  English  cases 
will  give  the  origin  and  development  of  the  law  in  England ;  Ameri- 
can cases  will  trace  its  expansion  and  modification  in  America;  notes 
and  annotations  will  suggest  phases  omitted  in  the  printed  case. 
Cumulative  references  will  be  avoided,  for  the  footnote  may  not  hope 
to  rival  the  digest. 

The  law  will  thus  be  presented  as  an  organic  growth,  and  the  neces- 
sary connection  between  the  past  and  the  present  will  be  obvious. 

The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. 

It  is  equally  obvious  that  somic  subjects  are  treated  at  too  great 
length,  and  that  a  less  important  subject  demands  briefer  treatment. 
A  small  book  for  a  small  subject. 

In 'this  way  it  will  be  alike  possible  for  teacher  and  class  to  com- 
plete each  book  instead  of  skimming  it  or  neglecting  whole  sections ; 
and  more  subjects  may  be  elected  by  the  student  if  presented  in  short- 
er form  based  upon  the  relative  importance  of  the  subject  and  the 
time  allotted  to  its  mastery. 

Training  and  knowledge  go  hand  in  hand,  and  Training  and  Knowl- 
edge are  the  kevnotes  of  the  series. 


Vi  PREFACE. 

If  it  be  granted  tliat  all.  or  nearly  all,  the  studies  required  for  ad- 
mission to  the  bar  should  be  studied  in  course  by  every  student — and 
the  soundness  of  this  contention  can  hardly  be  seriously  doubted — it 
follows  necessarily  that  the  preparation  and  publication  of  collections 
of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine  and  by 
no  means  unimportant  service  to  the  cause  of  legal  education.  And 
this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  cascbookb  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief. 

For  the  basis  of  calculation  the  hour  has  been  taken  as  the  unit.  The 
General  Editor's  personal  experience,  supplemented  by  the  experience 
of  others  in  the  class-room,  leads  to  the  belief  that  approximately  a 
book  of  400  pages  may  be  covered  by  the  average  student  in  half  a 
year  of  two  hours  a  week ;  that  a  book  of  600  pages  may  be  discussed 
in  class  in  three  hours  for  half  a  year;  that  a  book  of  800  pages  may 
be  completed  by  the  student  in  two  hours  a  week  throughout  the  year ; 
and  a  class  may  reasonably  hope  to  master  a  volume  of  1,000  pages 
in  a  year  of  three  hours  a  week.  The  general  rule  will  be  subject  to 
some  modifications  in  connection  with  particular  topics  on  due  con- 
sideration of  their  relative  importance  and  difficulty,  and  the  time 
ordinarily  allotted  to  them  in  the  law  school  curriculum. 

The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 

Administrative  Law.  Insurance. 

Agency.  International  Law. 

Bills  and  Notes.  Jurisprudence. 

Carriers.  ^Mortgages. 

Contracts.  Partnership. 

Corporations.  Personal  Property,  including 

Constitutional  Law.  the  Law  of  Bailment. 

Criminal  Law.  ~,     ,  _  .     ( 1st  Year. 

^  .    .     ,  n         ,  Real  Property.  J.  2d 

Crimmal  Procedure.  ^  1 3d 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales. 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 

Equity.  Trusts. 

Equity  Pleading.  Wills  and  Administration. 

Evidence. 

International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  sim.ple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 


PREFACE.  VU 

and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Jurisprudence  of  about  500  pages  is  deemed  essential  to  completeness. 

The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  class-room  and  the  needs  of  the  students  will  fur- 
nish a  sound  basis  of  selection. 

While  a  further  list  is  contemplated  of  usual  but  relatively  less  im- 
portant subjects  as  tested  by  the  requirements  for  admission  to  the 
bar,  no  announcement  of  them  is  made  at  present. 

The  following  gentlemen  of  standing  and  repute  in  the  profession 
are  at  present  actively  engaged  in  the  preparation  of  the  various  case- 
books on  the  indicated  subjects  : 

George  W.  Kirchwey,  Dean  of  the  Columbia  University,  School  of 
Law.    Subject,  Real  Property. 

Nathan  Abbott,  Professor  of  Law,  Columbia  University.  (Formerly 
Dean  of  the  Stanford  University  Law  School.)  Subject,  Per- 
sonal Property. 

Frank  Irvine,  Dean  of  the  Cornell  University  School  of  Law.  Sub- 
ject, Evidence. 

Harry  S.  Richards,  Dean  of  the  University  of  Wisconsin  School  of 
Law.    Subject,  Corporations. 

James  Parker  Hall,  Dean  of  the  University  of  Chicago  School  of  Law. 
Subject,  Constitutional  Law. 

William  R.  Vance,  Dean  of  the  George  Washington  University  Law 
School.    Subject,  Insurance. 

Charles  M.  Hepburn,  Professor  of  Law,  University  of  Indiana.  Sub- 
ject, Torts. 

William  E.  Mikell,  Professor  of  Law,  University  of  Pennsylvania. 
Subjects,  Criminal  Law  and  Criminal  Procedure. 

George  P.  Costigan,  Jr.,  Professor  of  Law,  Northwestern  University 
Law  School.    Subject,  Wills  and  Administration. 

Floyd  R.  Mechem,  Professor  of  Law,  Chicago  University.  Subject, 
Damages.     (Co-author  with  Barry  Gilbert.) 

Barry  Gilbert,  Professor  of  Law,  University  of  IlHnois.  Subject, 
Damages.     (Co-author  with  Floyd  R.  Mechem.) 

Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 
Subject,  Trusts. 

Charles  Thaddeus  Terry,  Professor  of  Law,  Columbia  University. 
Subject,  Contracts. 


viii  PREFACE. 

Albert  M.  Kales,  Professor  of  Law,  Northwestern  University.  Sub- 
ject, Persons. 

Edwin  C.  Goddard,  Professor  of  Law,  University  of  :\Iichigan.  Sub- 
ject, Agency. 

Howard  L.  Smith,  Professor  of  Law,  University  of  Wisconsin.  Sub- 
ject, Bills  and  Notes.    (Co-author  with  Wm.  Underhill  jMoore.) 

\Vm,  Underhill  Moore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Bills  and  Notes.    (Co-author  with  Howard  L.  Smith.) 

Edward  S.  Thurston.  Professor  of  Law,  George  \\'ashington  Univer- 
sity.   Subject,  Quasi  Contracts. 

Crawford  D.  Hening,  Professor  of  Law,  University  of  Pennsylvania. 
Subject,  Suretyship. 

Clarke  B.  Whittier,  Professor  of  Law,  University  of  Chicago.  Sub- 
ject, Pleading. 

Eugene  A.  Gilmore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Partnership. 

Joshua  R.  Clark,  Jr..  Assistant  Professor  of  Law,  George  Washington 
University.    Subject,  Mortgages. 

Ernst  Freund,  Professor  of  Law,  University  of  Chicago.  Subject, 
Administrative  Lazv. 

Frederick  Green,  Professor  of  Law,  University  of  Illinois.  Subject, 
Carriers. 

Ernest  G.  Lorenzen,  Professor  of  Law,  George  Washington  Univer- 
,  sity.    Subject,  Conflict  of  Lazvs. 

William  C.  Dennis,  Professor  of  Law,  George  Washington  University. 
Subject,  Public  Corporations. 

James  Brown  Scott,  Professor  of  Law,  George  Washington  Univer- 
sity; formerly  Professor  of  Law,  Columbia  University,  New 
York  City.  Subjects,  International  Lazv;  General  Jurisprudence; 
Equity. 

James  Brown  Scott, 
Washington,  D.  C,  July,  1010.  General  Editor. 


Following  are  the  books  of  the  Series  now  published,  or  in  press : 

Administrative  Law  Damages 

Bills  and  Notes  Partnership 

Carriers  Suretyship 

Conflict  of  Laws  Trusts 

Criminal  Law  Wills  and  Administration 

Criminal  Procedure 


The  translations  of  passages  from  medieval  sea  laws,  printed  in  this 
collection,  are  taken  from  the  work  published  by  Sir  Travers  Twiss 
under  the  title  of  The  Black  Book  of  the  Admiralty,  ]\Ionumenta  Jurid- 
ica,  London,  Longman  &  Co.,  etc.  The  editor  is  indebted  to  Joseph 
H.  Iglehart,  Esq.,  of  the  Indiana  bar  for  the  selection  of  some  of  the 
cases  in  Part  V. 

(is)* 


TABLE  OF  CONTENTS 


PART  I. 
Introductory  Topics. 


CHAPTER  I. 
Section  Page 

The  Liability  of  a  Bailee  tob  Loss  or  Damage  to  the  Article 
Bailed    1 


CHAPTER  II. 

The  Obligation  of  a  Common  Carrier. 

1.  Duty  to  serve 16 

2.  Liability  for  damage  or  loss 17 

CHAPTER  HI. 
What  is  Carriage 19 

CHAPTER  IV. 
What  is  a  Common  Carrier , . ,    34 

TART  II. 

The  Carrier's  Undertaking. 

chapter  i. 

The  Conduct  of  Transportation. 

1.  Dispatch    42 

2.  Continuity 47 

3.  Route    50 

4.  Effect  of  deviation 59 

5.  Seaworthiness    67 

6.  Care  of  goods  and  passengers 73 

7.  Transportation  not  within  the  contract  of  carriage 88 

I.     Without    acceptance.  .* 88 

II.     Ignorance,  mistake,  and  fraud 95 

CHAPTER     IL 

Excuses  for  Failure  to  Transport  and  Deliver 113 

Green  Caeb.  (xi) 


Xii  TABLE  OF  CONTENTS. 

CHAPTER  III. 

TuE  Completion  of  the  Carrier's  Uxdeutaicing. 
Section  Page 

1.  Place  and  manner  of  tender  to  consignee 135 

2.  To  whom  delivery  slipuld  be  made 151 

CHAPTER  IV. 
Who  mat  SiE  FOR  Breach  of  the  Cakkier's  Undeutakixg 176 

CHAPTER  V. 
Rights  of  a  Holder  of  a  Bill  of  Lading 1S2 

CHAPTER  VI. 
Tickets    ,  202 

CHAPTER  VII. 

Liability  where  Several  Persons  are  Concerned  in  Carriage. 

1.  With  whom  is  the  contract  of  carriage 229 

2.  Delegation  of  carrier's  duty 24G 

I.    Liability  of  the  carrier  who  delegates 24G 

II.     Liability  of  the  person  delegated 251 

3.  Presumption  as  to  circumstances  of  damage 255 


PART  III. 

The  Obligation  of  the  Shipper, 
chapter  i. 

Freight. 

1.  VTho  Is  liable  for  freight 257 

2.  When  freight  is  earned 202 

3.  Lien  for  freight 284 

CHAPTER  II. 
Character  of  Goods 296 

CHAPTER  IIL 
Dispatch  and  Demurrage 298 

CHAPTER  IV. 
Compens/^tion  for  Extraordinary  Services 307 


/ 


TABLE  OF  CONTENTS.  XUl 

PART    IV. 

The  Exceptional  Liability  of  a  Common  Carrier. 


CHAPTER  I. 

Section  Page 

Liability  foe  Damage  or  Loss  in  the  Caeriage  of  Goods 312 


CHAPTER  IL 

Liability  for  Injury  to  Passengers 326 

CHAPTER  III. 

Cases  not  within  the  Rule  of  Exceptional  Liability  in  the  Carriage 

of  Goods. 

1.  Act  of  God 345 

2.  Act  of  the  public  enemy 306 

3.  Quality  of  the  thing  carried 358 

4.  Act  of  the  shipper 367 

5.  Delay    374 

6.  Gratuitous    carriage 379 

7.  Articles  not  in  the  carrier's  custody 384 

CHAPTER  IV. 

Limitation  of  Liability. 

1.  Limitation  of  liability  by  notice 395 

2.  Limitation  of  liability  by  consent 407 

3.  Limitation  of  liability  by  statute 472 

CHAPTER  V. 

Duration  of  Liability. 

1.  WHen  liability  begins 482 

2.  WEen  liability  ends 496 


PART  V. 
The  Common  Carrier's  Duty  to  Serve. 

CHAPTER  I. 
Extent  of  Obligation  to  Serve 


XIV  TABLE  OF  CONTENTS. 

CHAPTER  II. 

Page 
Adequacy  of  Sebvice 540 

CHAPTER  III. 
Chaboes  fob  Service 559 

CHAPTER  IV. 
EkjuALixr  OF  Service 574 

APPENDIX. 
In  the  Matter  of  Bills  of  Lading 595 


TABLE  OF  CASES 


i[CASES  CITED  IX  FOOTNOTES  ARE   INDICATED    BY  ITALICS.      WHERE  SMALL  CAPITALS 
ARE   USED,    THE    CASE  IS   REFERRED   TO    IN    THE    TEXT] 


Page 

Acatos  V.  Bui-ns 297 

Adams  Exp.  Co.  v.  Daruell 496 

Adams  v.  New  Jersey  Steamboat 

Co 390 

Ailcen  v.  Southern  R.  Co 207 

Allen  V.  Maine  Cent.  R.  Co 123 

Ailing  V,  Boston  &  A.  R.  Co 105 

American,     Etc.,     Exp.     Co.     v. 

Milk   168 

Ajierican  Exp.  Co.   v.  Fletcher  169 
American  Exp.  Co.  v.  Perkins ....  370 

Amies  v.  Stevens 345 

Anchor  Line  v.  Dater 414 

Anderson  v.  Owners  of  The  San 

Roman 45 

Anonymous 285 

Asfar  &  Co.  v.  Blundell 276 

Assicurazioni    Genei'ali    v.    S.    S. 

Bessie  Morris  Co 127 

Aston  V.  Heaven 326 

Atchison,  etc.,  R.  Co.  v.  Roach...  244 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Par- 
ry        82 

Auerbach  v.  New  York  Cent.  &  H. 
R.  R.  Co 202 


Bailey  v.  Hudson  R.  R.  Co 151 

Baker  v.  Boston  &  M.  R,  Co 542 

Baltimore  &  O.  S.  W.  R.  Co.  v. 

VoiGT    452 

Bank  of  Kentucky  v.  Adams  Exp. 

Co 388 

Bank    op    Kentucky    v.    Adams 

Exp.    Co 253 

Bank  of  Orange  v.  Brown 321 

Barker  v.  Hodgson 117 

Barney  v.  The  D.  R.  Martin 537 

Baughman  v.  Louisville,  etc.,   R. 

Co 458 

Beard  v.  St.  Louis,  A.  &  T.  H.  R. 

Co 362 

Green  Cabb.  (xv) 


Page 

Beck  V.  Evans 77 

Bedford-Bowling  Green  Stone  Co. 

V.  Oman 546 

Bell  V.   Indianapolis,  C.   &   D.   R, 

Co 251 

Bell  V.  Pidgeon 34 

Bennett  v.  Button 525 

Bills  of  Lading,  In  re 595 

Birley  v.  Gladstone 301 

Birmingham  Ry.,   Light  &  Power 

Co.  V.  McDonqugh 553 

Bitterman  v.  Louisville  &  N.  R. 

Co 211 

Blair  v.  Erie  R.  Co 406 

Bland  V.  Adams  Exp.  Co 356 

Block  V.  Fitchburg  R.  Co 245 

Boering  v.  Chesapeake  Beach  R. 

Co 404 

Boggs  V.  Martin 285 

Bosworth  V.  Union  R.  Co 331 

Boi/ce  V.  Anderson 359 

Braithwaite  v.  Power 271 

Branch    v.   Wilmington   &   W.   R. 

Co 540 

BltETHERTON    V.    WOOD 324 

Briggs  V.  Boston  &  L.  R.  Co 291 

British  d  Foreign  Marine  Ins.  Co. 

V.  Southern  Pac.  Co 270 

Britten  v.  Great  Northern  R.  Co.  101 

Brown  v.  Harris 283 

Brunswick  &  W.  R.  Co.  v.  Moore  522 
Buckland  v.  Adams  Exp.  Co...  19,  244> 

Burghall  v.  Howard 122 

Burns  v.  Boston  Elevated  R,  Co.. .  403 
Busscy      V.      Mississippi      Valley 

Transp.    Co 27^ 

Butler  V,  Murray 129 


Cahill  V.  London  d-  X.  W.  R.  Co.  106 
Caledonia,  The 67 


XVI 


TABLE    OF   CASES. 


Page 
California  Powder  Works   v.   At- 
lantic A  P.  R.  Co 536 

Camuex  &  Amboy  Co.  v.  Blkke  350 
Canada  Soiitberu  R.  Co.  v.  Inter- 
national Bridge  Co 5G0 

Cargo  ex  Argos 30S 

Carr  v.  Lancashire,  etc.,  R.  Co...  439 

Cau  V.  Texas  &  P.  R.  Co 433 

Central  of  Georgia  R.  Co.  v.  Hall  462 
Central  of  Georgia  R.  Co.  v.  Hall  352 
Central  R.  Co.  of  New  Jersey  v. 

MacCartney  259 

Chesapeake  S.   8.   Co.   v.   Merch- 
ants' Nat.  Bank 190 

Chicago,  etc.,  R.   Co.  v.  Pullman 

Car    Co 532 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Hand- 
ler   13,  4.52 

Chicago  &  A.  R.  Co.  v.  Mulford. ,  240 
Chicago  &  A.  R.  Co.  v.  Thomp- 
son    370 

Chicago  &  E.  I.  R.  Co.  v.  Jennings  493 

Cliristie  v.  Griggs 327 

Citizens'      Bank      v.      Nantucket 

Steamboat    Co 229 

City  of  Norwicb,  The 474 

Claiborne  v.  Missouri,  etc.,  Co....     89 

Clark  V.  Burns 389 

Clark  V.  Masters 262 

Coggs  V.   Bernard 8,  317 

CoiiN  V.  Davidson 70 

Colonel  Ledyard,  The 365 

C-OM.  V.  FiTCHBURG  R.  Co 547 

Condran  v,  Chicago,  M.  &  St.  P. 

R.  Co 110 

Congar  v.  Chicago  &  N.  W.  Ry.  Co.  367 

Consulate  of  the  Sea 

50,  62,  67,  73,  284 

Consulate  of  the  Sea 

59,  97,  276,  299,  315 

Conger  v.  Hudson  R.  R.  Co 374 

Cork    Distilleries    Co.    v.     Great 

Southern,  etc.,  Co 1.50 

Ckagin  v.  X.  Y.  C.  R.  R.  Co 4.38 

Craker  v,  Chicago  &  X.  W.  R.  Co.  77 
Creamer  v.  West  End  St.  R.  Co.. .  520 

Crocker  v.  .Tackson 63 

Crommeliu  v.  New  York  &  H.  R, 

Co 305 

CuNDT  V.  Lindsay 1(H 

Cutler  V.  Winsor 230 

Dalton's  Adm'r  v.  Louisville  &  N. 

R.  Co 89 

Davis  V.  Garrett 60 


Page 

Delaware,  The 420 

Digest  282,  310 

Denver,  etc.,  Co.  v.  Hill 293 

Dohbin  v.  Michigan  Cent.  R.  Co  . .  151 
Dodge  V.  Boston  &  B.  S.  S.  Co.. . .  517 
Dorr  V.   New  Jersey  Steam  Nav. 

Co 407 

Douglas  Co.  v.  Minnesota,  etc.,  R. 

Co 4G4 

Duchemin  v.  Boston  Elevated  R. 

Co 494 

Duff  v.  Budd 171 

Dunbar     v.     Boston,     Etc.,     R. 

Corp 171 

Duulap    v.    International    Steam- 
boat Co 102 

Dwight  V.  Brewster 34 

Edmunds    v.    Merchants',    Etc., 

Co 171 

Edwards  v.  Manufacturers'  Bldg. 

Co 29 

Eliza,    The 43 

Eliza  Lines,  The 273 

Ellis  V.  Willard 191 

Engesether  v.  Great  Northern  R. 

Co 469 

Esposito  V.  Bowden 116 

Evans  v.  Fitchburg  R.  Co 358 

Everett  v.  Southern  Exp.  Co 97 

Express  Cases 528 

Fairbank  &  Co.  v.  Cincinnati... .  435 

Farley  v.  Lavary 31 

Faucher  v.  Wilson 37 

Finn  v.  Western  Railroad  Corp.. .  176 
First  Nat.  Bank  of  Greenfield  v. 

Marietta  &  C.  R.  Co 92 

Fisher  v.  Clisbce 386 

Flint  &  P.  M.  R.  Co.  v.  Weir 14 

Fonseca  v.  Cuuard  S.  S.  Co 418 

Forles  v.  Boston  &  L.  R.  Co 156 

Ford  V.  Mitchell 88 

Forsee  v.  Alabama  Great  South- 
ern R.  Co 554 

Forward  v.  Pittard 318 

Frederick  v.  Marquette,  H.  &  O. 

R.  Co 21.5 

Friend  v.  Woods 346 

Frith  v.  Barker 280 

Galena  &  C.  U.  R.  Co.  v.  Rae 539 

Garrison  v.   United  Rys.  &   Elec- 
tric  Co 206 


TABLE    OF   CASES. 


XVll 


Page 

Gibbon  v.  Paynlon 97 

Gibbon  v.  Paynton 457 

Gibson  v.  Culver 135 

Gibson  v.  Sturyc 282 

Gillespie  v.  St.  Louis,  etc.,  R.  Co. 

352,  356 

Gillespie  v.  Thompson 364 

GJceson  v.  Virginia  Midland  Ry..  .  352 

Glendarroch,   The 442 

Glyn  Mills  d  Co.  v.  East  &  West 

India  Dock  Co 187 

Gratitudine,    The 132 

Gray  v.  Carr 304 

Great  Western  R.  Co.  v.  Bunch.  .  389 
Green  v.  Milwaukee  &  St.  P.  R. 

Co 483 

Griswold  v.  New  York  Ins.  Co..  ..  274 
Grosvenor  v.  Neiv  York  Cent.  R. 

Co 491 

Chilf,  C.  &  S.  F.  R.  Co.   V.  Levi..  377 

Hadji,   The 465 

Hadley  v.  Clarke 113 

Hale  V,  New  Jersey  Steam  Nav. 

Co n 

Hardenberg  v.  St.  Paul,  M.  &  M. 

R.  Co 86 

Hardy  v.  American  Exp.  Co 144 

Harp  V.  Southern  R.  Co 212 

Harrington  v.  McShane 39 

Hart  T.  Chicago  &  N.  W.  R.  Co..  .  368 

Hart  V.  Pennsylvania  R.  Co 454 

Hawkins  v.  Front  Street  Cable 

Ry.  Co 337 

Eayne  v.  Union  St.  R.   Co 80 

Hays  v.  Pennsylvania  Co 576 

Hegeman  v.  Western  R.  Corp 246 

Hilton    Lumber    Co.    v.    Atlantic 

Coast  Line  R.  Co 579 

Hollister  v.  Nowlen 395 

Honeyman  v.  Oregon  &  C.  R.  Co.  40 

Hoover  v.  Pennsylvania  R.   Go...  581 

Howell  v.  Railroad  Co 393 

Hufford  V.  Grand  Rapids  &  I.  R. 

Co 218 

Hutchins  v.  Pennsylvania  R.    Co.  421 

Idaho,  The 119 

Illinois  Cent.  R.  Co.  v.  Allen 534 

Illinois  Cent.  R.  Co.  v.  Craiy 4a3 

Illinois  Cent.  R.  Co.  v.  O'Keefe.  . .     90 
Indianapolis  St.  R.  Co.  v.  Wilson  220 

Ingate  v.  Christie 36 

Interstate   Commerce   Commission 

V.  Chicago  G.  W.  Ry 593 

Green  Carr.— b 


Page 
Interstate  Commerce  Commission 

V.  Louisville  &  N.  R.  Co .591 

Interstate   Commerce  Commission 

V.  Louisville  &  N.  R.  Co .590 

Ionic,   The 374 

Jackson  v.  Rogers 16 

.Jackson  v.  Union  Marine  Ins.  Co.  115 
■Jackson  Architectural  Iron  Works 

V.    Hurlbut 38 

Jackson    Electric    Ry.,     Light    & 

Power  Co.  v.  Lowry ,552 

Jameson  v.  Sweeney 298 

Jaminet   v.    American    Storage    & 

Moving  Co 6 

Jarrett  v.  Great  Northern  R.  Co.  142 

Jerome  v.  Stnith 214 

Jesson  V.  Solly 300 

J.   J.   Douglas    Co.   v.    Minnesota, 

etc.,  R.  Co 464 

Johnson  v.  Dominion  Exp.  Co 538 

Jones  V.  Newiwrt  News  &  M.  V. 

Co 547 

June  V.  Railroad  Co 493 

Kcnrig  v.  Eggleston 96 

Kensington,   The 450 

Keokuk  Northern  Line  Packet 

Co.  V.  True 518 

Kinney  v.  Central  R.  Co 453 

Kirkland  v.  Dinsmoi-e 418 

Klauber  v.  American  E.rp.  Co 373 

Knox  V.  Rives 380 

KoPiTOFF  V.  Wilson 69 

Lamb    v.     Camden    &    A.    R.     & 

Trausp.  Co 439 

Lane  v.  Cotton 16,  315 

Lasker  v.  Third  Ave.  R.  Co 50 

Laus  of  Oleron 299 

Laws  of  Oleron 58,  129,  131 

Laws  of  Wisbuy 51,  284 

Leduc  &  Co.  V.  Ward 52 

Leer  V.  Yates 301 

Lemon  v.  Chanslor 381 

Lesinsky    v.    Great    Western    Dis- 
patch    144 

Lewis  V.  Houston  Electric  Co 491 

Lewis  V.  New  York  Sleeping  Car 

Co 82 

Libby  v.  Gage 277 

Lilley  v.  Doubleday 62 

Lines,  The  Eliza 273 

Lister  v.  Lancashire  &  Y.  R.  Co..  .  363 
Little  V.  Boston  &  M.  R.  R 95 


XV  lU 


TABLE   OF   CASES. 


Page 

Ivondon  &  N.  W.  R.  Co.  v.  Bartlett  149 

Loraine  v.  Pittsburg,  etc.,  It.  Co.  528 

Loudouu  V.  Eighth  Ave.  K.  Co 340 

Ixiuisville,   X.   A.  &  C.  IL   Co.    v. 

II»'ill>rin    143 

Ix.uisville.   N.  O.  &  T.   R.   Co.   v. 

Patterson   85 

Ixmisville  &  N.  II.  Co.  v.  Ilartwell  153 

Louisville  &  N.  U.  Co.  v.  Klyiium  47 

Louisville  &  N.  It.  Co.  v.  Meyer . .  425 

Louisville  d  IS!.  R.  Co.  v.  Odil 58 

Louisiana    &    N.    W.    K.    Co.    v. 

Cruuipler    328 

Lovett  v.  Hobls 384 

McCai-thy   v.   Louisville   d-    A'.   R. 

Co 374 

McEntee   v.    New    Jersey    Steam- 
boat Co 140 

M'Kean  v.  McI vor 100 

McKce  V.  Oucn 392 

McMillan  v.  Michigan  Southern  & 

N.  I.  R.  Co 411 

Marrow  v.  Great  Western  R.  Co.     99 

Madan  v.  Sherard 415 

Maddock  v.  American  Sugar  Re- 
fining Co 200 

Mann  v.  White  River  Log  &  Boom- 
ing Co 23 

Marshal's  Case 357 

Martha.   The 149 

Menzell  v,  Chicago  &  X.  W.  R.  Co.  4.34 

Mcrritt  v.  Enrle       3.52 

Merritt  v.  Old  Colony  &  N.  R.  Co.  482 
Michigan  Cent.  R.  Co.  v.  Hale...  410 

Miller  v.  Mansfield 307 

Miller  V.  Steam  ^av.  Co 352 

Missouri  Pac.  Ry.  v.  Larahee  Mills  .528 

Mueller  r.    Young 2G5 

Mollog.  De  Jure  Martimo 51 

Monnier  v.  Xew  York  Cent.  &  II. 

R.  R.  Co 55G 

Moore  v.  Xew  York,  X.  II.  &  II.  R. 

Co 255 

Morningstar  v.  Louisville  &  X.  R. 

Co 204 

Morrison  v.  McFadden 353 

Morse  v.  Slue 313 

:Moses  V.  Boston  &  M.  R.  Co 505 

Muschanip  v.  Lancaster  &  P.  J.  R. 

Co 232 

Jlynard  v.  Syracuse,  B.  &  X.  Y.  R. 

Co 43G 

Myrick  v.  Michigan  Cent.  R.  Co.  236 


Page 
Xational    Bank   of    Commerce    v. 

Chicago,  B.  &  X.  R.  Co 192 

Xational  Xewark  Banking  Co.  v. 

Delaware,  L.  &  W.  R.  Co 100 

Xeattie,  The 25 

Xebraska  Meal  Mills  v.  St.  Louis 

S.  W.  R.  Co 155 

Xew  Brunswick  Steamboat  Co.  v. 

Tiers    349 

Xew   Jersey    Stelam   Nav.   Co.    v. 

Mercuaxts'    Bank 436 

Xew  I'ork  Cent.  R.  Co.  v.   Ix)ck- 

wood 445 

New  York,  N.  H.  &  H.  R.  R.  v.  In- 
terstate  Commerce  Commission  591 

Xicholls  V.   More 257 

N.  K.  Fairbanks  d  Co.  v.  Cincin- 
nati, etc.,  R.  Co 435 

yobeVs  Explosives  Co.  v.  Jenkins  116 
Xortheru  Pac.  R.  Co.  v.  Adams...  451 
Xorthern  Pac.  R.  Co.  v.  Wash- 
ington      547 

Xorton  V.  Consolidated  R.  Co 223 

Xorway  Plains  Co.  v.  Boston  &  M. 

R.  R 500 

Xotara  v.  Henderson 73 

Oakley  v.  Portsmouth 346 

O'Malley  v.  Great  Xorthern  R.  Co.  459 
Oppenheimer     v.     United     States 

Exp.  Co 400 

Orange  Count]/  Bank  v.  Broicn..  97 
Ouimit  V.  Henshaw 510 

Pacific  Exp.  Co.  V.  Shearer 167 

Packard  v.  Earle 138 

Packard  v.  Taylor 251 

Parker  v.  Xorth  German  Lloyd  S. 

S.    Co 393 

Parker  v.  North  German  Lloyd  S. 

S.  Co '. 22 

Parsons  r.    Monteath 352 

Pennsylvania  R.  Co.  v.  Fries 352 

People  v.  Xew  York,  L.  E.  &  W. 

R.    Co 548 

Phelps,  James  &  Co.  v.  Hill...,  55 
Phelps  V.  Windsor  Steamboat  Co.  249 
Pierce  v.  Milwaukee  &   St.  P.  R. 

Co 382 

Pierce  v.  Winsor 296 

Pine  Bluff,  etc.,  R.  Co.  v.  McKen- 

zie    486 

Pingree  v.  Detroit.  L.  &  N.  R.  Co.  124 
Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v. 

Hazen   378 


TABLE    OF   CASES. 


XIX 


Page 
Pope  V.  Farmers'  Union  Sz  Milling 

Co 5 

Pbatt  v.  Railway  Co 515 

Price  v.  Oswego.  Etc.,  R.  Co....  170 
Proprietors  of  the  Trent  Xav.  v. 

Wood     317 

r-iiUman  Co.  v.  Reed 214 

Queen  of  the  Pacific,  The 468 

Railroad  Co.  v.  Boi/lr 92 

Ralli  V.  Troop 1.33 

Ratzer  v.  Burlington.  C.  R.  &  N. 

R-    Co 1S8 

Readhead  v.  Railroad  Co 71 

Read  v.  Spaukliug 64 

Revised    Statutes   of    the    United 

States    472 

Richardson  v.  Goddard 139 

Ritchie  v.  Atkixsox 280 

Robertson  v.  Old  Colony  R.  Co. . .  27 

Roberts  v.  Turner 21 

Robinson  v.  Baker 288 

Robinson  v.  Knights 279 

Rodocanachi,   Sons  &   Co.  v.   Mil- 
burn  Bros 430 

Ross  V.  Troy  &  B.  R.  Co 371 

Row  V.  PiCKFORD 503 

Runyon  v.  Central  R.  Co.  of  yew 

Jersey   102 

Ryan  v.  Missouri,  K.  &  T.  R.  Co.  442 

St,  Joseph  &  W.  R.  Co.  v.  Wheeler  106 
St.  Louis.  A.  &  T.   H.   R.   Co.   v. 

Montgomery  486 

St.  Louis  S.  W.  R.  Co.  of  Texas  v. 

Bryant 524 

Samuel  v.  Cheney 163 

Savona,   The 115 

Scofield  V.  Lake  Shore  &  M.  S.  R. 

Co 574 

Scothorn    v.    South    Staffordshire 

R.  Co 148 

Scotland,  The 476 

Shelton    v.    Merchants'    Dispatch 

Transp.  Co 422 

Silvia.  The 479 

Singer    v.    Merchants'     Despatch 

Transp.  Co 172 

Skinner  v.  Upshaw 285 

Sleoi>er  v.  Pennsylvania  R.  Co. . . .  209 

Smith  v.   Shepherd 350 

Southcote's   Case 379 


Page 
Southern  Exp.  Co.  v.  Caldwell . .  .  466 
Southern  Exp.  Co.  v.  Dickson. .. .  151 
Southern  Exp.  Co.  v.  Van  Meter  170 
Southern  Pac.  Co.  v.  Bartine. . .  567 

Southern  R.  Co.  v.  Adams 468 

Southern  R.  Co.  v.  Jones 458 

South  &  North  Alabama  R.  Co.  v 

Hen  lein    465 

State  V.  Central  Vermont  R.  Co...  581 

State  V.  Reed 533 

State  V.  Texas  d  P.  R.  Co 586 

Steele  v.   McTyer 39 

Steele  V.  Southern  R.  Co 330 

Stuai-t  V.   Crawley 373 

Sullivan  v.  Seattle  El.  Co 84 

Table  of    Amalfi 73 

Tate  V.  Yazoo  &  M.  V.  R.  Co 484 

Taylor  v.  Great  Northern  R.  Co. . .     42 
Texas  &  P.  R.  Co.  v.  Abilene  Cot- 
ton Oil  Co 559 

Texas  &  P.  R.  Co.  v.  Clayton 512 

Texas  &  P.  R.  Co.  v.   Interstate 

Commerce    Commission 587 

Texas  &  P.  R.  Co.  v.  Jones 80 

Thompson  v.  Chicago  &  A.  R.  Co.  469 

Thompson  v.  Dominy 182 

Thorpe  V.   New  York  Cent.  &  H. 

R.  R.  Co 247 

Tibblts  V.  Rock  Island  &  P.  R.  Co.  197 

Tift  V.  Southern  R.  Co 561 

Tindall  v.  Taylor 273 

Toledo,  W.  &  W.  R.  Co.  v.  Brooks  108 

Tower  v.  Utica  &  S.  R.  Co 388 

Tracy  v.  Wood 12 

Tweedie   Trading   Co.    v.    Jas.   P. 

McDonald    Co 117 

Tyly   V.   Alorrice 97 

Union  Exp.  Co.  v.  Graham 373 

United     States    ex    rel.    Pitcairn 

Coal  Co.  v.  Baltimore  &  O.  R. 

Co 582 

United  States  v.  Freight  Ass'n  5^>4 

Van  Blarcom  v.  Central  R.  Co.  of 

New  Jersey 333 

Tincent  v.  Chichi  go  rf-  A.  R.  Co.. ..  545 
Vlierboom    v.    Chapman 268 

Wade  V.   Wheeler 487 

Walker  v.  Jackson 99 

Walters  v.  Detroit  United  R.  Co.  510 


XX 


TABLE    OF   CASES. 


Page 

Wrnn,  In  re 503 

W«'Uster  V.  Fitchburg  R.  Co 480 

Wehmann  v.  Miuueapolis,  St.  P.  & 

S.  S.  M.  R.  Co 431 

Wtiii(/art  r.  I'uUuian   Co 389 

West  Cliester  &  l\  R.  Co.  v.  Miles  550 

Western  Transp.  Co.  v.  Iloyt 266 

\Vhcclcr   V.    Occar.ic   Steam  Nav. 

Co 472 

Wichita  Sav.  Bank  v.  Atchison,  T. 

&  S.  F.  R.  Co 183 

Wight  V.  U.   S 590 

Willett  V.  I'll  iUips 279 


Page 
WiUiams  v.  Oregon  Short  TAne  R. 

Co 384 

Williams  v.  Spokane  Falls  &  N.  R. 

Co 336 

Witheck   v.   Holland 498 

Woodlife's  Case 312 

Wooster  V.  Tarr 258 

Wyckoff  V.  Queens  County  Ferry 

Co 386 

Young  V.  Leary 1 

Zeccardi  v.  Yonkers,  etc.,  R.  Co.. .  520 


CASES  ON  THE  LAW  OF 
CARRIERS 


PART  I 

INTRODUCTORY  TOPICS 


CHAPTER  I 


THE  LIABILITY  OF  A  BAILEE  FOR  DAMAGE 
TO  THE  ARTICLE  BAILED 


YOUNG  V.  LEARY. 

(Court  of  Appeals  of  New  York,  1802.     135  X.  Y.  5G9,  32  N.  E.  607.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  third  judicial  department,  entered  upon  an  order  made  Novem- 
ber 5,  1891,  which  affirmed  a  judgment  in  favor  of  plaintiff  entered 
upon  the  report  of  a  referee. 

This  was  an  action  upon  a  guaranty.  The  facts  so  far  as  material 
are  stated  in  the  opinion. 

Peckham,  J.^  The  questions  in  this  case  arise  out  of  a  charter  par- 
ty^ executed  on  the  17th  of  October,  1884,  by  the  Washburn  Steam- 
boat Company  and  one  McKay,  for  whom  the  defendant  became  surety. 
The  company  on  the  day  mentioned  let,  and  McKay  hired,  the  steam 
propeller  called  the  Alicia  A.  Washburn,  of  which  the  company  was 
the  owner,  for  the  term  of  12  months  from  October  17,  18S4-,  to  be 
employed  in  lawful  trade  between  Key  West  and  other  points  on  the 
West  Florida  coast,  on  the  terms  and  conditions  mentioned  in  the  char- 

1  Parts  of  the  opinion  are  omitted. 

2  "Charter  party  (charta  partita;  i.  e.,  a  deed  of  writing  divided)  is  all 
one  in  the  civil  law  with  an  indenture  at  the  common  law."  Molloy,  De 
Jure  Maritime,  book  II,  c.  4,  §  4. 

Green  Cabe. — 1 


2  INTRODUCTORY  Torics.  (Part  1 

ter  party.  Among  other  provisions  thereof  was  one  by  which  IMcKay 
agreed  *  *  *  that  on  the  termination  of  the  charter  he  would 
"deliver  the  said  steam  propeller  to  the  Washburn  Steamboat  Company, 
or  their  legal  representatives,  in  New  York  harbor,  in  the  same  good 
condition  as  she  is  now  in,  ordinary  wear  and  tear  excepted."  *  *  * 
The  vessel  was  burned  at  sea  in  January,  188G.     *     *     * 

The  remaining  obligation  of  ^NIcKay  under  this  charter  party  is  con- 
tained in  that  provision  by  which  he  agreed,  in  the  language  already 
quoted,  to  deliver  the  vessel  to  the  company  in  New  York  harbor. 

It  has  been  claimed  on  the  part  of  the  plaintiff  in  the  courts  below, 
and  it  is  now  urged  here,  that  this  promise  to  deliver  was  on  its  face 
an  absolute  and  unconditional  one,  and  a  failure  to  fulfill  it  would  not 
be  excused  by  the  entire  destruction  of  the  vessel  before  breach,  and 
without  fault  on  the  part  of  the  charterer.  It  is  true  that  the  vessel 
was  not  destroyed  at  the  time  when  by  the  terms  of  the  original  prom- 
ise McKay  had  bound  himself  to  deliver  it  in  New  York  harbor.  The 
question  is  whether  the  contract  to  deliver  was  absolute,  and  only  to 
be  complied  with  by  an  actual  delivery  within  the  time  agreed  upon, 
or  whether  a  destruction  of  the  thing  hired,  before  breach,  and  with- 
out the  fault  of  him  who  hired  it.  would  not  absolve  the  latter  from 
his  contract.  If  it  would,  there  is  the  further  question  whether  the 
facts  herein  do  not  show  a  waiver  of  the  contract  to  deliver  at  the 
specified  date,  and  an  implied  extension  of  the  time  for  such  delivery, 
and  the  destruction  of  the  vessel  within  the  time  thus  extended,  with- 
out the  fault  of  the  hirer ;  or,  at  least,  whether  the  facts  proved  were 
not  enough  to  permit  a  finding  of  the  fact  of  such  waiver  and  exten- 
sion. 

The  case  of  Harmony  v.  Bingham,  12  N.  Y.  99,  62  Am.  Dec.  142,'  is 
one  of  the  leading  cases  of  that  class  which  must  have  controlled  the 
judgment  of  the  courts  below  in  the  case  at  bar.  It  was  there  reit- 
erated, as  a  principle  well  founded  in  the  law  of  contracts,  that  inevi- 
table accident  or  any  unforeseen  contingency,  not  within  the  control 
of  the  party  promising,  was  no  defense  to  an  action  founded  upon  the 
express  promise  to  do  the  thing  and  a  failure  of  performance.  An 
act  of  God,  it  was  said,  would  excuse  a  party  from  performing  a  duty 
created  by  law,  but  not  where  such  party  had  unconditionally  engaged 
by  express  contract  to  perform.  It  is  argued  that  here  is  an  express 
promise  to  deliver  this  vessel  in  the  harbor  of  New  York,  and,  as  the 
promise  was  not  fulfilled,  the  promisor  is  liable,  and  hence  the  liabil- 
ity of  the  defendant  as  his  surety.  We  do  not  think  that  the  law  ap- 
plicable to  the  class  of  cases  of  which  that  of  Harmony  v.  Bingham, 
supra,  is  a  conspicuous  example,  applies  here. 

The  contract  in  this  case  comes,  as  it  seems  to  us,  under  another 
class,  which  relates  to  the  hiring  for  use  of  the  thing  hired,  and  where 
an  express  contract  is  made  to  redeliver  the  article  hired  upon  the  de- 
termination of  the  term  of  hiring.  Even  in  such  cases  of  express  con- 
tract, there  is  implied  a  condition  of  the  continued  existence  of  the 


Ch.   1)  LIABILITY    OF   BAILEE    FOR   DAMAGE.  3 

thing  which  is  the  subject  of  the  contract;  and  if  it  perish  without 
any  fault  of  the  hirer,  so  that  redelivery  becomes  impossible,  the  hirer 
is  excused.  If  a  horse  be  delivered  to  one  under  an  express  promise 
to  redeliver  when  demanded,  and  the  horse  die  before  demand  and 
without  fault  on  the  part  of  the  bailee,  he  is  excused.  Williams  v. 
Lloyd,  W.  Jones,  179 ;    Sparrov/  v.  Sowgate,  Id.  29. 

Mr.  S.  Martin  Leake,  in  his  Digest  of  the  Law  of  Contracts  (at  page 
706),  says :  "The  authorities  establish  the  principle  that  where,  from 
the  nature  of  the  contract,  it  appears  that  the  parties  must,  from  the 
beginning,  have  known  that  it  could  not  be  fulfilled,  unless  when  the 
time  for  the  fulfillment  of  the  contract  arrived,  some  particular  speci- 
fied thing  continued  to  exist,  so  that  when  entering  into  the  contract 
they  must  have  contemplated  such  continued  existence  as  the  founda- 
tion of  what  was  to  be  done,  then,  in  the  absence  of  any  express  or 
implied  warranty  that  the  thing  shall  exist,  the  contract  is  not  to  be 
construed  as  a  positive  contract,  but  as  subject  to  an  implied  condition 
that  the  parties  shall  be  excused  in  case,  before  breach,  the  contract  be- 
comes impossible  from  the  perishing  of  the  thing  without  the  default 
of  the  contractor." 

Several  cases  are  referred  to  in  support  of  this  proposition.  Among 
them  are  those  in  the  note  to  Hall  v.  Wright,  96  E.  C.  L.  745,  at  side 
of  page  747,  El.  Bl.  &  El.  746;  Taylor  v.  Caldwell,  3  Best  &  S.  836, 
113  E.  C.  L.  826.  Blackburn,  J.,  says,  in  last  case,  that  the  implica- 
tion in  an  express  contract  of  this  nature,  that  the  thing  itself  shall 
be  in  existence  when  the  person  is  called  upon  to  fulfill  his  contract, 
tends  to  further  the  great  object  of  making  the  legal  construction  such 
as  to  fulfill  the  intention  of  the  parties  to  the  contract ;  for  in  the  course 
of  affairs  men  in  making  such  contracts  in  general  would,  if  it  were 
brought  to  their  minds,  say  that  there  should  be  such  a  condition.  See, 
also,  Appleby  v.  Myers,  L.  R.  2  C.  P.  651,  per  Blackburn,  J.,  658. 

There  is  no  question  that  a  party  can,  if  he  so  please,  bind  himself 
to  deliver  notwithstanding  the  thing  may  perish  which  he  contracts 
to  deliver.  He  does  not  thus  bind  himself  by  the'  use  of  the  ordinary 
language  as  contained  in  this  charter  party.  The  above  cases  show 
this  to  be  true. 

When  language  like  that  found  in  this  agreement  is  used,  the  con- 
dition of  continued  existence  is  implied,  and  as  thus  interpreted  it 
creates  nothing  more  of  an  obligation  than  that  which  the  law  raises 
without  any  such  promise.  Wlien  language  is  used  which  does  no  more 
than  express  in  terms  the  same  obligation  which  the  law  raises  from 
the  facts  of  the  transaction  itself,  the  party  using  the  language  is  no 
further  bound  than  he  would  have  been  without  it. 

So  it  was  held  in  the  case  of  Ames  v.  Belden,  17  Barb.  513,  where  the 
defendant  was  sued  for  its  value  for  not  returning  a  steamboat  ac- 
cording to  the  condition  of  the  charter  party  by  which  defendant  agreed 
to  return  the  same  at  the  expiration  of  the  term  in  as  good  condition 


4  INTRODUCTORY  TOPICS.  (Part  1 

as  it  then  was,  excepting  ordinary  use  and  wear.  The  court  said  the 
lan.qnage  must  be  held  to  have  reference  to  the  ordinary  obHgation  of 
such  a  bailee  to  return  the  article  hired,  and  defendant  was  exempt  if 
before  the  time  arrived  the  article  had  been  destroyed  without  his  fault. 
This  is  only  another  way  of  saying  that  an  obligation  expressed  in  such 
language  carries  with  it  an  implied  condition  that  the  article  to  be  re- 
turned shall  be  in  existence  at  the  time  when  the  obligation  to  return 
arises,  and,  if  in  the  mean  time  it  has  been  destroyed  without  the  de- 
fault of  the  promisor,  he  is  not  bound  by  his  contract  thus  expressed. 
The  case  is  thus  entirely  supported  by  th6  cases  above  cited.  To  the 
same  eflfect  is  the  case  of  Hyland  v.  Paul,  33  Barb.  241. 

The  same  principle  has  been  held  operative  in  covenants  or  agree- 
ments contained  in  leases  of  real  estate  which  included  buildings,  and 
where  the  lessee  has  agreed  to  deliver  possession  of  the  same  at  the 
expiration  of  the  lease  in  the  same  condition  as  at  the  date  of  the  lease, 
natural  wear  and  tear  excepted.  This  obligation  is  subject  to  the  im- 
plied condition  that  the  building  shall  be  in  existence  at  the  end  of  the 
term,  and,  if  before  that  time  it  was  burned  down  without  the  default 
of  the  tenant,  he  is  held  not  liable  under  his  contract.  Warner  v.  Hitch- 
ins,  5  Barb.  66G ;  Mcintosh  v.  Lown,  49  Barb.  550,  at  555 ;  1  Wood, 
Landl.  &  Ten.  (2d  Ed.)  811,  813,  notes;  1  Tayl.  Landl.  &  Ten.  (8th 
Ed.)  §  3G0,  latter  part  of  section.  It  is  otherwise  if  the  lessee  has  cove- 
nanted to  repair  or  rebuild.  Mcintosh  v.  Lown,  supra;  Phillips  v. 
Stevens,  16  Mass.  238. 

It  seems  to  me  as  if  authorities  are  not  required  upon  the  proposi- 
tion that,  in  a  contract  containing  the  ordinary  language  providing  for 
redelivery,  an  implication  of  continued  existence  of  the  thing  to  be  re- 
turned is  to  be  made;  for,  to  again  quote  the  language  used  by  Mr. 
Justice  Blackburn  in  Taylor  v.  Caldwell,  supra :  "In  the  course  of  af- 
fairs, men  in  making  such  contracts  in  general  would,  if  it  were  brought 
to  their  minds,  say  that  such  should  be  the  condition."  There  is  noth- 
ing in  the  other  portions  of  the  charter  party  which  afifects  in  any  way, 
to  the  detriment  of  the  defendant,  this  particular  question.    *    *    * 

No  question  arises  in  this  record  as  to  where  lies  the  burden  of  proof 
as  to  the  loss  of  the  vessel  and  its  cause.^  The  case  was  tried  and  de- 
cided upon  a  different  theory,  and  without  reference  to  the  question 
of  burden  of  proof.  It  is  not,  therefore,  necessary  to  now  discuss  it. 
For  the  reasons  already  given,  the  judgment  should  be  reversed,  and 
a  new  trial  granted,  with  costs  to  abide  the  event.    All  concur. 

Judgment  reversed. 

8  As  to  the  burden  of  proof,  see  Lamb  v.  Camden  Co.,  post,  p.  440;  CTaflin 
V.  Meyer,  75  N.  Y.  2G0,  31  Am.  Rep.  467  (187S) ;  Knights  v.  Piella,  111  Mich. 
9,  GO  N.  W.  92,  6G  Am.  St.  Rep.  375  (1S9G) ;  3  Am.  &  Eug.  Eucy.  of  Law  {2d 
Ed.)  7.30. 


Ch.  1)  LIABILITY   OF    BAILEE    FOR   DAMAGE. 


POPE  V.  FARMERS'  UNION  &  MILLING  CO. 

(Supreme  Court  of  California,  1900.     130  Cal.  139,  62  Pac.  384,  53  L.  R.  A. 
673,  80  Am.  St.  Rep.  87.) 

Appeal  from  a  jtidgment  of  the  superior  court  of  San  Joaquin  coun- 
ty and  from  an  order  denying  a  new  trial. 

Henshaw,  J.  Plaintiff  sued  to  recover  from  defendant  the  value 
of  certain  wheat  deposited  under  the  terms  of  the  following  written 
contract:  "Stockton,  Cal,  July  hi,  1897.  Received  of  Mrs.  L.  C. 
Pope,  in  the  Eureka  warehouse,  situated  on  Levee  street,  Stockton, 
the  following  described  merchandise,  which  we  agree  to  deliver  (dam- 
age by  the  elements  excepted),  upon  the  surrender  of  this  certificate 
and  payment  of  charges,  twenty-seven  hundred  seventy-six  sacks 
wheat,  weighing  three  hundred  eighty-three  thousand  one  hundred 
forty-six  pounds.  Rates  of  storage,  seventy-five  cents  per  ton  for  the 
season  ending  June  1,  1898.  2,776  sacks  wheat,  weighing  383,146. 
Room  6,  pile  No.  67.    Mark :   X.  C.  P.'  " 

The  complaint  alleged  a  demand  upon  the  defendant  for  the  return 
of  the  wheat,  and  its  failure  to  comply  therewith.  The  answer  of  de- 
fendant did  not  deny  the  existence  of  the  contract,  but  pleaded  that, 
through  no  negligence  upon  its  part,  the  major  portion  of  the  wheat 
was  destroyed  by  fire,  and  the  rest  of  it  so  badly  damaged  as  to  be  of 
small  value,  and  offered  to  restore  to  plaintiff  the  damaged  wheat  in 
its  possession,  and  the  value  of  such  portion  of  the  damaged  wheat 
as  it  had  already  sold.  Under  these  pleadings,  a  trial  was  had  before 
a  jury.  The  plaintiff  rested  her  case  without  the  introduction  of  any 
evidence.  The  evidence  for  the  defense,  which  was  admitted  without 
any  objection  by  plaintiff,  showed  that  the  warehouse  was  destroyed  by 
fire,  and  that  the  fire  was  of  incendiary  origin.  The  court  instructed 
the  jury,  generally,  that  plaintiff  could  not  recover  if  it  were  not  shown 
that  defendant  was  negligent.  Verdict  passed  for  defendant,  judg- 
ment in  its  favor  followed  the  verdict,  and  from  that  judgment,  and 
from  an  order  denying  her  a  new  trial,  plaintiff  appeals. 

By  its  written  contract,  defendant  promised  absolutely  to  return  the 
wheat  to  plaintiff  upon  surrender  of  the  certificate,  "damage  by  the 
elements  excepted."  "Damage  by  the  elements"  is  the  equivalent  of 
the  phrase  "act  of  God."  Polack  v.  Pioche,  35  Cal.  416,  95  Am.  Dec. 
115 ;  Chidester  v.  Ditch  Co.,  59  Cal.  202 ;  Fay  v.  Improvement  Co.,  93 
Cal.  253,  261,  26  Pac.  1099,  28  Pac.  943,  16  L.  R.  A.  188,  27  Am.  St. 
Rep.  198.  As  no  effort  was  made  by  defendant  to  reform  this  con- 
tract in  any  way,  it  must  stand,  so  far  as  this  case  is  concerned,  ex- 
actly as  it  was  written ;  and,  so  construing  it,  it  is  open  to  but  one  in- 
terpretation, namely,  that  defendant's  liability  to  return  the  wheat  was 
absolute,  unless  it  was  prevented  from  so  doing  by  the  act  of  God. 
Under  this  construction  of  the  contract,  it  was  no  defense  for  defend- 
ant to  say,  or  to  show,  that  the  wheat  was  destroyed  without  negli- 


6  INTRODUCTORY  TOPICS.  (Part  1 

gence  upon  its  part.  It  was  incumbent  upon  it  to  show  that  the  wheat 
was  in  fact  destroyed  or  damaged  by  the  elements.  The  evidence 
which  it  adduced  tended  merely  to  prove  that  the  fire  was  of  incendi- 
ary origin,  and  thus  absolutely  to  negative  the  idea  that  the  destruc- 
tion of  the  grain  was  caused  by  the  act  of  God.  The  judgment  and 
order  are  therefore  reversed,  and  the  cause  remanded. 

Tkmple  and  McFarland,  J  J.,  concurred. 

Hearing  in  bank  denied. 


JAMINET  v.  AMERICAN  STORAGE  &  ^lOVING  CO. 

(St.  Louis  Court  of  Appeals,  1904.     100  Mo.  App.  257,  84  S.  W.  lliS.) 

GooDE,  J.*  Action  against  defendant  for  the  destruction  of  a  mirror 
and  the  partial  destruction  of  a  portrait  of  the  plaintiff  while  the  de- 
fendant was  moving  the  plaintiff's  household  goods  from  a  residence 
on  Laclede  avenue,  in  the  city  of  St.  Louis,  to  one  on  Gates  avenue. 
*  *  *  For  the  plaintiff  the  court  instructed  the  jury  that  if  they 
found  the  defendant's  agent  agreed  with  the  plaintiff  well  and  safely 
to  move  and  carry  her  household  furniture  and  goods  between  the  re- 
spective residences,  and  deliver  them  in  as  good  condition  as  when 
received,  and  that  a  painting  and  a  mirror,  or  either  of  them,  were  in- 
jured or  destroyed  while  in  the  defendant's  possession,  the  verdict 
should  be  for  the  plaintiff.  The  court  refused  instructions  requested 
by  the  defendant  of  the  following  purport:  *  *  *  That  the  defend- 
ant was  charged  with  only  reasonable  care  in  handling  the  portrait — 
that  is,  such  care  as  prudent  men  use  in  carrying  on  their  business — 
and,  if  defendant's  servants  handled  it  with  that  degree  of  care,  the 
defendant  was  not  responsible.    *    *     *    " 

The  important  inquiry  is  as  to  the  extent  of  the  appellant's  under- 
taking, and  the  legal  duty  incumbent  on  it  in  consequence  thereof. 
What  did  the  appellant  agree  to  do  ?  There  is  a  principle  of  law  which 
may  be  stated  in  general  terms  as  follows :  When  a  party,  by  an  ab- 
solute agreement,  imposes  the  duty  on  himself  of  performing  an  act, 
he  is  not  relieved  of  liability  on  his  obligation  by  a  subsequent  event 
which  renders  performance  impossible.  Davis'  Adm'r  v.  Smith,  15 
Mo.  467;  Harrison  v.  R.  R.,  74  Mo.  364,  41  Am.  Rep.  318;  Beatie 
V.  Coal  Co.,  56  Mo.  App.  230.     *     *     * 

But  is  the  rule  mentioned  the  proper  test  of  the  appellant's  liability? 
Liability  on  its  part  as  a  common  carrier  was  excluded.  It  stands, 
therefore,  as  a  private  carrier  (locatio  mercium  vehendarum)  or  bailee 
for  hire,  subject  only  to  the  duties  and  responsibilities  of  such  a  bailee, 
unless  by  agreement  it  assumed  additional  ones.  Now,  what  are  the 
usual  duties  and  obligations  of  such  a  bailee?  To  give  the  care,  skill, 
and  diligence  to  the  effort  to  safely  carry  and  redeliver  the  bailed 

*  Parts  of  the  opinion  are  omitted. 


Ch.   1)  LIABILITY   OF   BAILEE    FOR   DAMAGE.  7 

property  to  the  bailor  that  are  commonly  given  by  men  in  the  same 
employment.  Such  a  carrier,  like  other  bailees  for  hire,  is  only  re- 
sponsible for  losses  occasioned  either  by  his  own  or  his  servants'  neg- 
ligence. Story,  Bailments  (9th  Ed.)  art.  4,  §  457;  Hutchinson,  Car- 
riers (2d  Ed.)  37;  United  States  v.  Power,  6  Mont.  271,  13  Pac.  639; 
White  V.  Bascom,  28  Vt.  268;  Varble  v.  Bigley,  14  Bush  (Ky.)  698, 
29  Am,  Rep.  435. 

It  follows  from  the  above  doctrine  and  authorities  that  the  appel- 
lant was  not  bound  at  all  events  to  deliver  the  respondent's  goods,  in- 
cluding the  portrait,  in  an  undamaged  state,  at  her  new  home,  by  force 
of  its  general  obligation  as  a  private  carrier  for  hire ;  and  could  have 
become  thus  bound  only  by  a  special  term  in  the  contract  between  the 
parties,  by  some  definite  stipulation  or  warranty  superadding  to  the 
ordinary  duty  and  responsibility  of  a  private  carrier  a  responsibility 
akin  to  that  resting  on  a  common  carrier.  Prima  facie,  the  appellant 
was  liable,  as  the  portrait  was  bailed  to  it  in  good  condition  and  was 
returned  damaged.  But  the  proof  is  that  the  damage  happened  with- 
out the  fault  of  appellant's  servants,  and  in  a  way  that  no  man  could 
have  foreseen  or  prevented.  That  makes  a  good  excuse  for  a  bailee 
not  bound  by  a  special  undertaking.  Claflin  v.  Meyer,  75  N.  Y.  260,  31 
Am.  Rep.  467 ;  Stewart  v.  Stone,  127  N.  Y.  500,  28  N.  E.  595,  14  L. 
R.  A.  215 ;   Mills  v.  Gilbreth,  47  Me.  320,  74  Am.  Dec.  487. 

But  it  is  contended  the  appellant  stipulated  specially  for  the  safe 
carriage  and  redelivery  of  respondent's  property  in  as  good  condition 
as  when  received  by  it.  As  to  the  latter  words  ("as  good  condition  as 
when  received  by  it"),  we  find  no  testimony  that  they  or  their  equiva- 
lent were  uttered  by  the  parties  when  negotiating  the  contract,  and 
in  leaving  the  jury  to  find  there  was  a  contract  containing  them  the 
instruction  to  the  jury  went  beyond  the  evidence.  The  most  that  was 
testified  to  against  the  appellant  was  that  its  manager  agreed  to  move 
and  deliver  the  goods  safely,  and  to  be  responsible  for  them.    *     *    * 

Can  it  fairly  be  said,  on  any  aspect  of  the  evidence,  that  appellant 
contracted  against  injury  by  the  malicious  act  of  a  third  person?  Was 
the  scope  of  its  agreement  larger  than  the  ordinary  undertaking  of  a 
person  who  assumes  to  move  valuable  property;  that  is,  an  undertak- 
ing to  exercise  skill  and  care?  To  our  minds,  the  respondent's  own 
testimony  furnishes  a  conclusive  answer  to  this  inquiry.  She  swore 
the  appellant's  manager,  Langdale,  with  whom  she  made  the  contract, 
said  he  was  responsible,  "and  would  move  them  [the  goods]  with  care, 
and  deliver  them  safely."  Plainly,  the  only  undertaking  by  Langdale, 
to  be  gathered  from  that  statement,  was  for  the  careful  moving  and 
safe  delivery  of  the  property;  that  is,  he  assumed  responsibility  for 
care  in  moving  and  for  safe  delivery  as  far  as  appellant's  servants 
were  concerned,  not  for  the  safety  of  the  goods  in  any  event,  includ- 
ing the  chance  of  malicious  destruction  by  an  outsider.    *    *    * 

In  our  judgment,  no  broader  contract  is  justly  deducible  from  what 
passed  between  the  parties  than  the  ordinary  one  of  a  bailment  for 


8  INTRODUCTORY  TOPICS.  (Part  X 

hire;  the  undertaking  of  a  private  carrier  to  use  care  and  skill.  There 
was  no  warranty  against  every  loss,  and  no  thought  in  the  mind  of 
either  party  of  such  a  loss  as  happened,  or  of  any  loss  from  extrane- 
ous causes.  The  true  meaning  and  obligation  of  the  undertaking  the 
testimony  goes  to  show  the  appellant  company  assumed  has  been  ex- 
pounded by  judges  in  considered  cases,  and  by  commentators,  too.  In 
Story  on  Bailments  (section  457),  after  the  statement  that  a  private 
carrier  will  be  held  liable  for  any  loss  within  the  scope  of  his  contract, 
this  statement  follows :  "But  even  an  express  undertaking  by  a  private 
person  to  carry  goods  safely  and  securely  is  but  an  undertaking  to 
carry  them  safely  and  securely,  free  from  any  negligence  of  himself 
or  his  servants;  and  it  does  not  insure  the  safety  of  the  goods  against 
losses  by  thieves,  or  any  taking  by  force."    *    *    * 

It  is  patent  on  the  face  of  the  conversation  between  appellant's  man- 
ager, Langdale,  and  the  respondent  and  her  daughter,  which  conver- 
sation formed  the  contract  between  the  parties,  that  the  respondent  was 
solicitous  about  the  care  and  skill  with  which  her  goods  would  be 
handled,  and  Langdale  was  assuring  her  on  that  point.  Nothing  was 
shown  which  fairly  can  be  interpreted,  in  the  hght  of  similar  cases,  as 
an  assumption  by  Langdale  of  any  risk  of  loss  or  injury  to  the  goods 
from  the  unsuspected  malice  of  a  stranger,  or  of  any  risk  except  from 
the  neglect  or  lack  of  skill  of  appellant's  servants.  The  portrait  was 
injured  solely  by  the  mischievous  act  of  a  boy  who  chanced  to  go  by 
while  the  picture  was  being  prepared  for  safe  carriage  in  the  appel- 
lant's van.  We  hold  that  the  appellant  was  not  responsible  for  that 
loss  on  the  showing  made. 

No  question  has  been  presented  on  this  appeal  as  to  appellant's  re- 
sponsibility for  the  mirror. 

It  was  erroneous,  we  think,  to  refuse  the  instruction  requested  by 
the  appellant  that  it  was  charged  with  reasonable  care  in  handling  and 
removing  the  oil  portrait,  as  that  was  the  true  test  of  its  duty. 

The  judgment  is  reversed,  and  the  cause  remanded.    All  concur.' 


COGGS  V.  BERNARD. 

(Court  of  Queen's  Bench,  Trinity  Term,  1703.     2  Ld.  Raym.  909.) 

Action  on  the  case. 

Holt,  C.  J.®  The  case  is  shortly  this.  This  defendant  undertakes 
to  remove  goods  from  one  cellar  to  another,  and  there  lay  them  down 
safely ;  and  he  managed  them  so  negligently,  that  for  want  of  care  in 
him  some  of  the  goods  were  spoiled.     LTpon  not  guilty  pleaded,  there 

6  See,  also,  Standard  Brewery  v.  Malting  Co.,  171  111.  G02,  49  X.  E.  507 
(1S9S). 

6  The  statement  of  facts,  the  opinions  of  Gould,  Powys,  and  Powell,  JJ, 
and  parts  of  the  opinion  of  Holt,  C.  J.,  are  omitted. 


Ch.   1)  LIABILITY   OF   BAILEE    FOR   DAMAGE.  9 

has  been  a  verdict  for  the  plaintiff,  and  that  upon  full  evidence,  the 
cause  being  tried  before  me  at  Guildhall.  There  has  been  a  motion  in 
arrest  of  judgment,  that  the  declaration  is  insufficient  because  the  de- 
fendant is  neither  laid  to  be  a  common  porter,  nor  that  he  is  to  have 
any  reward  for  his  labor,  so  that  the  defendant  is  not  chargeable  by 
his  trade,  and  a  private  person  cannot  be  charged  in  an  action  with- 
out a  reward. 

I  have  had  a  great  consideration  of  this  case;  and  because  some 
of  the  books  make  the  action  lie  upon  the  reward,  and  some  upon  the 
promise,  at  first  I  made  a  great  question  whether  this  declaration  was 
good.  But  upon  consideration,  as  this  declaration  is,  I  think  the  ac- 
tion wall  well  lie.  In  order  to  show  the  grounds  upon  which  a  man 
shall  be  charged  with  goods  put  into  his  custody,  I  must  show  the  sev- 
eral sorts  of  bailments.     And  there  are  six  sorts  of  bailments. 

The  first  sort  of  bailment  is,  a  bare  naked  bailment  of  goods,  de- 
livered by  one  man  to  another  to  keep  for  the  use  of  the  bailor ;  and 
this  I  call  a  "depositum,"  and  it  is  that  sort  of  bailment  which  is  men- 
tioned in  Southcote's  Case,  4  Rep.  83b. 

The  second  sort  is,  when  goods  or  chattels  that  are  useful  are  lent 
a  friend  gratis,  to  be  used  by  him;  and  this  is  called  "commodatum,'.' 
because  the  thing  is  to  be  restored  in  specie. 

The  third  sort  is,  when  goods  are  left  with  the  bailee  to  be  used 
by  him  for  hire ;  this  is  called  "locatio  et  conductio,"  and  the  lender  is 
called  "locator,"  and  the  borrower  "conductor." 

The  fourth  sort  is,  when  goods  or  chattels  are  delivered  to  another 
as  a  pawn,  to  be  a  security  to  him  for  money  borrowed  of  him  by 
the  bailor ;  and  this  is  called  in  Latin,  "vadium,"  and  in  English,  a 
"pawn"  or  a  "pledge." 

The  fifth  sort  is,  when  goods  or  chattels  are  delivered  to  be  car- 
ried, or  something  is  to  be  done  about  them  for  a  reward  to  be  paid  by 
the  person  who  delivers  them  to  the  bailee,  who  is  to  do  the  thing 
about  them. 

The  sixth  sort  is,  when  there  is  a  delivery  of  goods  or  chattels  to 
somebody  who  is  to  carry  them,  or  do  something  about  them  gratis, 
without  any  reward  for  such  his  work  or  carriage,  which  is  this  pres- 
ent case. 

I  mention  these  things,  not  so  much  that  they  are  all  of  them  so 
necessary  in  order  to  maintain  the  proposition  which  is  to  be  proved, 
as  to  clear  the  reason  of  the  obligation  which  is  upon  persons  in  cases 
of  trust. 

As  to  the  first  sort,  where  a  man  takes  goods  in  his  custody  to  keep 
for  the  use  of  the  bailor,  I  shall  consider  for  what  things  such  a  bailee 
is  answerable.  He  is  not  answerable  if  they  are  stole  without  any 
fault  in  him,  neither  will  a  common  neglect  make  him  chargeable,  but 
he  must  be  guilty  of  some  gross  neglect.  *  *  *  For  if  he  keeps 
the  goods  bailed  to  him  but  as  he  keeps  his  own,  though  he  keeps  his 


10  INTRODUCTORY   TOPICS.  (Part  1 

own  but  negligently,  yet  he  is  not  chargeable  for  them ;  for  the  keep- 
ing them  as  he  keeps  his  own  is  an  argument  of  his  honesty.     *     *     * 

As  to  the  second  sort  of  bailment,  viz.  commodatum,  or  lending 
gratis,  the  borrower  is  bound  to  the  strictest  care  and  diligence  to 
keep  the  goods,  so  as  to  restore  them  back  again  to  the  lender ;  because 
the  bailee  has  a  benefit  by  the  use  of  them,  so  as  if  the  bailee  be  guilty 
of  the  least  neglect  he  will  be  answerable,     *     *     * 

As  to  the  fifth  sort  of  bailment,  viz.  a  delivery  to  carry  or  other- 
wise manage,  for  a  reward  to  be  paid  to  the  bailee,  those  cases  are  of 
two  sorts ;  either  a  delivery  to  one  that  exercises  a  public  employment, 
or  a  delivery  to  a  private  person.  First,  if  it  be  to  a  person  of  the  first 
sort,  and  he  is  to  have  a  reward,  he  is  bound  to  answer  for  the  goods 
at  all  events.     *     *     * 

As  to  the  sixth  sort  of  bailment,  it  is  to  be  taken,  that  the  bailee  is 
to  have  no  reward  for  his  pains,  but  yet  that  by  his  ill  management 
the  goods  are  spoiled.  Secondly,  it  is  to  be  understood,  that  there  was 
a  neglect  in  the  management.  But  thirdly,  if  it  had  appeared  that  the 
mischief  happened  by  any  person  that  met  the  cart  in  the  way,  the 
bailee  had  not  been  chargeable.  As  if  a  drunken  man  had  come  by  in 
the  streets,  and  had  pierced  the  cask  of  brandy ;  in  this  case  the  de- 
fendant had  not  been  answerable  for  it,  because  he  was  to  have  noth- 
ing for  his  pains.  Then  the  bailee  having  undertaken  to  manage  the 
goods,  and  having  managed  them  ill,  and  so  by  his  neglect  a  damage 
has  happened  to  the  bailor,  which  is  the  case  in  question,  what  will  you 
call  this?  In  Bracton,  lib.  3.  100,  it  is  called  "mandatum."  It  is  an 
obligation  which  arises  ex  mandato.  It  is  what  we  call  in  English  an 
acting  by  commission.  And  if  a  man  acts  by  commission  for  another 
gratis,  and  in  the  executing  his  commission  behaves  himself  neg- 
ligently, he  is  answerable.  Vinnius,  in  his  commentaries  upon  Jus- 
tinian, lib.  3.  tit.  27,  684,  defines  mandatum  to  be  contractus  quo  ali- 
quid  gratuito  gerendum  committitur  et  accipitur.  This  undertaking 
obliges  the  undertaker  to  a  diligent  management.     *     *     * 

The  reasons  are,  first,  because,  in  such  a  case,  a  neglect  is  a  deceit 
to  the  bailor.  For,  when  he  entrusts  the  bailee  upon  his  undertaking 
to  be  careful,  he  has  put  a  fraud  upon  the  plaintifif  by  being  negligent, 
his  pretense  of  care  being  the  persuasion  that  induced  the  plaintifif  to 
trust  him.  And  a  breach  of  a  trust  undertaken  voluntarily  will  be  a 
good  ground  for  an  action.     *     *     * 

But,  secondly,  it  is  objected,  that  there  is  no  consideration  to  ground 
this  promise  upon,  and  therefore  the  undertaking  is  but  nudum  pac- 
tum. But  to  this  I  answer,  that  the  owner's  trusting  him  with  the 
goods  is  a  sufficient  consideration  to  oblige  him  to  a  careful  manage- 
ment. Indeed  if  the  agreement  had  been  executory,  to  carry  these 
brandies  from  the  one  place  to  the  other  such  a  day,  the  defendant 
had  not  been  bound  to  carry  them.  But  this  is  a  dififerent  case,  few  as- 
sumpsit does  not  only  signify  a  future  agreement,  but  in  such  a  case 


Ch.  1)  LIABILITY   OF   BAILEE   FOR   DAMAGE.  11 

as  this  it  signifies  an  actual  entry  upon  the  thing  and  taking  the  trust 
upon  himself  J  And  if  a  man  will  do  that,  and  miscarries  in  the  per- 
formance of  his  trust,  an  action  will  lie  against  him  for  that,  though 
nobody  could  have  compelled  him  to  do  the  thing. 

The  19  Hen.  VI,  49,  and  the  other  cases  cited  by  my  brothers,  show 
that  this  is  the  difference.  But  in  the  11  Hen.  IV,  33,  this  difference 
is  clearly  put,  and  that  is  the  only  case  concerning  this  matter  which 
has  not  been  cited  by  my  brothers.  There  the  action  was  brought 
against  a  carpenter,  for  that  he  had  undertaken  to  build  the  plaintiff 
a  house  within  such  a  time,  and  had  not  done  it,  and  it  was  adjudged 
the  action  would  not  lie.^  But  there  the  question  was  put  to  the  court. 
What  if  he  had  built  the  house  unskillfully  ?  and  it  is  agreed  in  that 
case  an  action  would  have  lain.  There  has  been  a  question  made,  If 
I  deliver  goods  to  A.,  and  in  consideration  thereof  he  promise  to  re- 
deliver them,  if  an  action  will  lie  for  not  redelivering  them;  and  in 
Riches  &  Brigges,  Yelv.  4,  judgment  was  given  that  the  action  would 
lie.  But  that  judgment  was  afterwards  reversed;  and,  according  to 
that  reversal,  there  was  judgment  afterwards  entered  for  the  defend- 
ant in  the  like  case.     Pickas  v.  Guile,  Yelv.  128. 

But  those  cases  were  grumbled  at;  and  the  reversal  of  that  judg- 
ment in  Yelv.  4,  was  said  by  the  judges  to  be  a  bad  resolution;  and 
the  contrary  to  that  reversal  was  afterwards  most  solemnly  adjudged 
in  Steer  v.  Scoble,  2  Cro.  667,  Tr.  21  Jac.  I,  in  the  King's  Bench, 
and  that  judgment  affirmed  upon  a  w^rit  of  error.  And  yet  there  is 
no  benefit  to  the  defendant,  nor  no  consideration  in  that  case,  but  the 
having  the  money  in  his  possession,  and  being  trusted  with  it,  and  yet 
that  was  held  to  be  a  good  consideration.  And  so  a  bare  being  trusted 
with  another  man's  goods  must  be  taken  to  be  a  sufficient  considera- 
tion, if  the  bailee  once  enter  upon  the  trust,  and  take  the  goods  into  hi-s 
possession.  The  declaration  in  the  case  of  Mors  v.  Slue  [post,  p.  313] 
was  drawn  by  the  greatest  drawer  in  England  in  that  time;  and  in 
that  declaration,  as  it  was  always  in  all  such  cases,  it  was  thought  most 
prudent  to  put  in  that  a  reward  was  to  be  paid  for  the  carriage.  And 
so  it  has  been  usual  to  put  it  in  the  writ,  where  the  suit  is  by  original. 

I  have  said  thus  much  in  this  case,  because  it  is  of  great  consequence 
that  the  law  should  be  settled  in  this  point ;  but  I  don't  know  whether 
I  may  have  settled  it,  or  may  not  rather  have  unsettled  it.  But  how- 
ever that  happen,  I  have  stirred  these  points,  which  wiser  heads  in 
time  may  settle.     And  judgment  was  given  for  the  plaintiff. 

7  See  Professor  James  Barr  Ames.  The  History  of  Assumpsit,  2  Harv. 
Law  Rev.  1,  5. 

8  See  The  History  of  Assumpsit,  supra,  at  page  10. 


12  INTRODUCTORY   TOPICSi  (Part  1 

TRACY  V.  WOOD. 
(Circuit  Court,  D.  Rhode  Island,  1822.    3  Mason,  132,  Fed.  Cas.  No.  14.130.) 

Assumpsit  for  negligence  in  losing  7641/^  doubloons,  intrusted  to 
defendant,  a  money  broker,  to  be  carried  gratuitously  from  New  York 
to  Boston.  Defendant  put  the  coins,  which  were  in  two  bags,  into 
a  valise  with  money  of  his  own,  brought  the  valise  in  the  evening 
aboard  a  steamboat  which  was  to  start  the  next  morning,  and  left  it 
in  a  berth  in  the  forward  cabin.  He  then  went  to  a  theater,  and  on  his 
return  slept  in  the  middle  cabin.  In  the  morning  one  of  the  bags  was 
gone.  Defendant  left  the  valise  on  a  table  in  the  cabin  for  a  few  mo- 
ments while  he  went  on  deck  to  send  information  of  the  loss  to  the 
plaintiff,  the  loss  then  being  known  to  a  large  number  of  passengers. 
When  he  came  back  the  second  bag  was  gone.  Many  other  circum- 
stances were  proved. 

Story,  Circuit  Justice,*  after  summing  up  the  facts,  said :  I  agree 
to  the  law  as  laid  down  at  the  bar,  that  in  cases  of  bailees  without  re- 
ward, they  are  liable  only  for  gross  negligence.  Such  are  depositaries, 
or  persons  receiving  deposits  without  reward  for  their  care ;  and  man- 
dataries, or  persons  receiving  goods  to  carry  from  one  place  to  an- 
other without  reward.  The  latter  is  the  predicament  of  the  defend- 
ant. He  undertook  to  carry  the  gold  in  question  for  the  plaintiff,  gra- 
tuitously, from  New  York  to  Providence,  and  he  is  not  responsible  un- 
less he  has  been  guilty  of  gross  negligence.    *    *     * 

The  language  of  the  books,  as  to  what  constitutes  gross  negligence, 
or  not,  is  sometimes  loose  and  inaccurate  from  the  general  manner  in 
which  propositions  are  stated.  When  it  is  said,  that  gross  negligence 
is  equivalent  to  fraud,  it  is  not  meant,  that  it  cannot  exist  without  fraud. 
There  may  be  very  gross  negligence  in  cases  where  there  is  no  pre- 
tence that  the  party  has  been  guilty  of  fraud;  though  certainly  such 
negligence  is  often  presumptive  of  fraud.    *    *    * 

It  appears  to  me,  that  the  true  way  of  considering  cases  of  this  na- 
ture, is,  to  consider  whether  the  party  has  omitted  that  care  which 
bailees,  without  'hire,  or  mandataries  of  ordinary  prudence  usually  take 
of  property  of  this  nature.  If  he  has,  then  it  constitutes  a  case  of  gross 
negligence.  The  question  is  not  whether  he  has  omitted  that  care, 
which  very  prudent  persons  usually  take  of  their  own  property,  for 
the  omission  of  that  would  be  but  slight  negligence:  nor  whether  he 
has  omitted  that  care  which  prudent  persons  ordinarily  take  of  their 
own  property,  for  that  would  be  but  ordinary  negligence.  But  whether 
there  be  a  want  of  that  care,  which  men  of  common  sense,  however 
inattentive,  usually  take,  or  ought  to  be  presumed  to  take  of  their  prop- 
erty, for  that  is  gross  negligence.  The  contract  of  bailees  without  re- 
ward is  not  merely  for  good  faith,  but  for  such  case  as  persons  of  com- 

•  The  statement  has  been  rewritten,  and  parts  of  the  opinion  omitted. 


Ch.   1)  LIABILITY    OF   BAILEE    FOR   DAMAGE.  13 

mon  prudence  in  their  situation  usually  bestow  upon  such  property. 
If  they  omit  such  care,  it  is  gross  negligence. 

The  present  is  a  case  of  a  mandatary  of  money.  Such  property  is 
by  all  persons,  negligent  as  well  as  prudent,  guarded  with  much  greater 
care  than  common  property.  The  defendant  is  a  broker,  accustomed 
to  the  use  and  transportation  of  money,  and  it  must  be  presumed  he  is 
a  person  of  ordinary  diligence.  He  kept  his  own  money  in  the  same 
valise ;  and  took  no  better  care  of  it  than  of  the  plaintiff's.  Still  if 
the  jury  are  of  opinion,  that  he  omitted  to  take  that  reasonable  care 
of  the  gold  which  bailees  without  reward  in  his  situation  usually  take, 
or  which  he  himself  usually  took  of  such  property,  under  such  circum- 
stances, he  has  been  guilty  of  gross  negligence.^" 

A^erdict  for  the  plaintiffs  for  $5,700,  the  amount  of  one  bag  of  the 
gold;    for  the  defendant  as  to  the  other  bag. 

10  See,  also.  Nelson  v.  MacKintosh,  1  Starkie.  237  (1816) ;  .Jenkins  v.  Mot- 
low,  1  Sneed  (Tenn.)  248.  60  Am.  Dec.  154  (1853) ;  Foster  v.  Essex  Bank,  17 
Mass.  479,  9  Am.  Dec.  168  (1821) ;  Knowles  v.  Atlantic  R.  Co.,  38  Me.  55,  61 
Am.  Dec.  234  (1854):  Clark  v.  Eastern  R.  Co.,  139  Mass.  423,  1  N.  B.  128 
(1885) ;  Prof.  J.  H.  Beale,  Gratuitous  Undertakings,  5  Harvard  Law  Rev. 
222. 

"The  word  'culpa'  nearly  coincides  in  meaning  with  the  English  law  term 
'negligence.'  It  was  formerly  thought  that  three  degrees  of  culpa  or  neg- 
ligence were  recognized  by  the  Roman  law.  These  were  the  culpa  lata,  the 
culpa  letns,  and  the  culpa  levissima — gross ,  negligence,  negligence,  and  slight 
negligence.  Lord  Holt  brought  this  theory  into  the  English  law,  by  his  opin- 
ion in  Coggs  V.  Bernard  [ante,  p.  8].  In  his  essay  on  Bailments,  Sir  Wil- 
liam Jones  adopted  it  from  Pothier,  and  from  the  case  of  Coggs  v.  Bernard, 
and  brought  it  into  great  prominence.  Mr.  Justice  Story  also  gave  his 
countenance  to  the  theory.  *  *  *  The  doctrine  of  three  degrees  fails  in 
reconciling  those  tests  of  the  Roman  law,  to  which,  if  correct,  it  should  be 
applicable.  The  terms — lata,  latior ;  levis,  levior,  levissima;  diligens,  diligen- 
tissimus;  exacta,  exactissima — where  they  occur  in  the  Corpus  Juris,  are 
now  considered  simply  as  variations  of  style,  used  without  a  thought  of 
the  distinctions  which  the  commentators  endeavored  to  found  upon  them. 
According  to  the  now  established  opinion,  the  Roman  law  in  most  cases  re- 
quired of  a  person  the  conduct  of  a  prudent  man — diligentla  diligentis  patris 
fa^mnlias  (the  care  of  a  prudent  person  who  is  sui  juris).  In  a  few  cases, 
as.  for  instance,  in  suits  between  partners,  the  defendant  might  show  in 
defense  that  he  conducted  the  partnership  affairs  with  as  much  care  as  he 
used  about  his  own ;  it  being  his  partner's  loss  if  he  chose  to  enter  into  that 
relation  with  a  careless  man."  N.  St.  J.  Green,  note  to  Story  on  Agency 
(8th  Ed.)  §  1,84. 

In  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Hamler,  215  111.  525,  74  N.  E.  705, 
1  L.  R.  A.  (N.  S.)  674,  106  Am.  St.  Rep.  187  (1905),  it  was  held  that  a  contract 
exempting  a  railroad  from  liability  to  a  Pullman  porter  for  negligent  injury 
was  valid,  though  the  negligence  were  gross.  Cartwright,  C.  J.,  said:  "We 
are  of  opinion  that  no  distinction  as  to  the  rights  of  the  parties  can  be 
founded  upon  speculation  as  to  different  degrees  of  mere  negligence,  and 
that  the  trial  court  erred  in  instructing  the  jury  to  find  for  the  plaintiff  if 
they  concluded  that  the  defendant  was  guilty  of  gross  negligence.  Formerly 
this  court,  in  expounding  the  doctrine  of  comparative  negligence,  classified 
negligence  into  three  degrees,  as  slight,  ordinary,  and  gross;  but  that  doctrine 
was  long  ago  abolished,  and,  while  negligence  may  since  that  time  have  been 
alluded  to  in  opinions  as  gross  or  slight,  no  weight  has  been  given  to  the 
question  and  no  liability  has  been  based  on  any  distinction  in  degrees  unless 
the  negligence  was  willful  or  intentional,  where  it  assumes  an  entirely  different 
character  from  that  of  negligence  in  its  ordinary  meaning.  In  negligence 
merely  there  is  no  intention  to  do  a  wrongful  act  or  omit  the  performance 


14  INTRODUCTORY  TOPICS.  (Part  1 

FLINT  &  P.  ^I.  RY.  CO.  v.  WEIR. 
(Supreme  Court  of  Michigan,  1S77.    37  Mich.  Ill,  26  Am.  Rep.  499.) 

Assumpsit.    Defendant  brings  error, 

CooLEY,  C.  J.^^  The  manner  in  which  this  case  is  submitted  makes 
the  record  present  substantially  this  question:  Whether  in  the  court 
below  there  was  any  evidence  tending  to  prove  the  plaintiff's  case? 
*    *    * 

The  evidence  was  put  into  the  case  by  stipulation,  and  in  the  main  the 
facts  are  undisputed.  It  appears  that  the  plaintiff  took  passage  upon 
the  cars  of  the  defendant  from  Detroit  to  Saginaw,  and  that  he  had 
with  him  a  trunk,  which  he  avers  contained  the  articles  of  personal 
property  described  in  the  declaration.  This  trunk  has  been  lost,  but 
whether  through  any  fault  of  the  railway  company  is  in  dispute.  It 
is,  however,  shown  by  the  plaintiff  himself  that  both  he  and  his  trunk 
were  being  carried,  not  for  hire  and  reward,  but  gratuitously.  There 
was  consequently  no  contract  for  carriage  by  the  railway  company, 
and  this  action,  which  is  in  assumpsit,  cannot  be  maintained.  Nolton 
V.  Western  R.  Corp.,  15  N.  Y.  444,  446,  69  Am.  Dec.  623.12 

There  can  be  no  question  that  a  railway  company  which  receives 
property  for  gratuitous  carriage  assumes,  like  any  other  gratuitous 
bailee,  certain  duties  in  respect  to  it,  and  that  a  suit  will  lie  for  a  fail- 
ure to  perform  these  duties.  *  *  *  The  gratuitous  bailee  must  not 
be  reckless.  He  must  observe  such  care  as  may  reasonably  be  re- 
quired of  him  under  the  circumstances ;  but  it  is  not  the  same  care 
which  is  required  of  the  bailee  who,  for  his  own  profit,  assumes  the 
duty.  This  is  elementary,  and  is  so  reasonable  that  it  requires  no  dis- 
cussion. When  care  is  bargained  for  and  compensated,  something  is 
expected  and  is  demandable  beyond  what  can  be  required  of  him  who 
undertakes  a  merely  gratuitous  favor.     *     *     * 

of  a  duty.  *  *  ♦  One  of  the  reasons  given  by  the  courts  for  disregarding 
supposed  distinctions  in  degrees  of  negligence  is  the  inability  to  give  the 
terms  'slight.'  'ordinary.'  and  'gross'  any  definite  meaning  and  the  impractica- 
bility of  applying  any  rule  based  on  the  supposed  distinction.  It  is  clear 
that  negligence  cannot  be  divided  into  slight,  ordinary,  and  gross  by  definite 
lines,  so  that  a  jury  may  understand  the  limits  of  each  and  assign  each  case  to 
its  owai  department.  *  *  *  In  Wilson  v.  Brett,  11  Mees.  &  W.  113  (1843), 
It  was  held  that  there  is  no  legal  difference  between  negligence  and  gross 
negligence,  that  it  is  the  same  thing  with  the  addition  of  a  vituperative 
epithet,  and  that  the  question  in  any  case  is  whether  there  was  culpable 
negligence.  *  ♦  *  It  will  be  found  that  the  words  'slight,'  'ordinary,'  and 
'gross.'  as  applied  to  negligence,  are  not  used  in  the  decisions  with  the  same 
meaning  or  any  definite  and  well  understood  meaning." 

See,  also.  Milwaukee  &  St.  P.  Ry.  Co.  v.  Arms.  91  U.  S.  489,  23  L.  Ed.  374 
(1S75) ;  Griffith  v.  Zipperwick,  28  Ohio  St.  388  (1876) ;  Rideout  v.  AVinnebago 
Trac.  Co.,  123  Wis.  2f)7.  101  N.  W.  672,  69  L.  R,  A.  601  (1904) ;  The  Three 
Degrees  of  Negligence.  8  Am.  Law  Rev.  649. 

11  Parts  of  the  opinion  are  omitted. 

12  But  see  Coggs  v.  Bernard,  ante.  p.  8:  McCaulev  v.  Davidson.  10  Minn. 
418,  Gil.  335  (I860) ;  Pollock  on  Contracts,  178 ;  2  Harvard  Law  Rev.  6 ;  5 
Harvard  Law  Rev.  224. 


Ch.    1)  LIABILITY    OF   BAILEE    FOR   DAMAGE.  15 

But  as  the  plaintiff  has  brought  his  action,  not  in  tort,  but  upon 
contract,  there  can  be  no  recovery  under  his  declaration,  and  the  extent 
of  the  duty  which,  under  the  circumstances,  was  imposed  upon  the 
railway  company  becomes  immaterial.  The  judgment  must  be  reversed, 
with  costs,  but  as  the  facts  are  not  embodied  in  a  finding  by  the  circuit 
judge,  so  as  to  permit  of  our  entering  final  judgment  in  this  court, 
a  new  trial  must  be  ordered. 


16  INTRODUCTORY  TOPICS.  (Part  1 

CHAPTER  II 
THE  OBLIGATION  OF  A  COMMON  CARRIER 


SECTION  1.— DUTY  TO  SERVE 


JACKSON  V.  ROGERS. 

(Court  of  King's  Bench,  Micli.  Term,  1683.    2  Show.  327.) 

Action  on  the  case,  for  that  whereas  the  defendant  is  a  common  car- 
rier from  London  to  Lymmington  et  abinde  retrorsum,  and  setting  it 
forth  as  the  custom  of  England,  that  he  is  bound  to  carry  goods,  and 
that  the  plaintiff  brought  him  such  a  pack,  he  refused  to  carry  them, 
though  offered  his  hire. 

And  held  by  Jefferirs,  C.  J.,  that  the  action  is  maintainable,  as  well 
as  it  is  against  an  innkeeper  for  refusing  a  guest,  or  a  smith  on  the 
road  who  refuses  to  shoe  my  horse,  being  tendered  satisfaction  for 
the  same. 

Note,  that  it  was  alleged  and  proved  that  he  had  convenience  to 
carry  the  same ;  and  the  plaintiff  had  a  verdict. 


Holt,  C.  J.,^  in  LANE  v.  COTTON,  12  Mod.  472  (1701) :  "*  *  * 
Wherever  any  subject  takes  upon  himself  a  public  trust  for  the  rest  of 
his  fellow  subjects,  he  is  eo  ipso  bound  to  serve  the  subject  in  all  the 
things  that  are  within  the  reach  and  comprehension  of  such  an  of- 
fice, under  pain  of  an  action  against  him;  and  for  that  see  Kehvay  50. 
If  on  the  road  a  shoe  falls  off  my  horse,  and  I  come  to  a  smith  to  have 
one  put  on,  and  the  smith  refuse  to  do  it,  an  action  will  lie  against 
him,  because  he  has  made  profession  of  a  trade  which  is  for  the  pub- 
lic good,  and  has  thereby  exposed  and  vested  an  interest  of  himself  in 
all  the  king's  subjects  that  will  employ  him  in  the  way  of  trade.  If 
an  innkeeper  refuse  to  entertain  a  guest,  where  the  house  is  not  full, 
an  action  will  lie  against  him:  and  so  against  a  carrier,  if  his  horses 
be  not  loaded,  and  he  refuse  to  take  a  packet  proper  to  be  taken  by  a 
carrier;  and  I  have  known  such  actions  maintained,  though  the  cases 
are  not  reported.    *    *    *     If  the  inn  be  full  or  the  carrier's  horses 

1  The  action  was  against  the  Postmaster  General  for  the  loss  of  a  letter 
stolen  in  the  post  office.  Lord  Holt  dissented  from  a  decision  in  favor  of  the 
defendant 


Ch.  2)  THE    OBLIGATION    OF   A    COMMON    CARRIER.  17 

loaden,  the  action  would  not  He  for  such  refusal,  but  one  that  has  made 
profession  of  a  public  employment,  is  bound  to  the  utmost  extent  of 
that  employment  to  serve  the  public.  Sure  then  where  it  is  a  public 
employment  created  by  law,  the  obligation  is  the  greater;  as  if  the 
sheriff  refuse  a  writ,  an  action  will  lie  against  him,  because  the  law 
charges  him  with  an  employment  for  the  conveniency  and  good  of  the 
public." 


SECTION  2.— LIABILITY  FOR  DAMAGE  OR  LOSS^ 


HALE  V.  NEW  JERSEY  STEAM  NAVIGATION  CO. 

(Supreme  Court  of  Connecticut,  1843.    15  Conn.  539,  39  Am.  Dec.  398.) 

Williams,  C.  J.^  This  suit  was  brought  for  two  carriages,  ship- 
ped on  board  the  Lexington,  against  the  defendants,  as  common  car- 
riers, to  be  transported  in  said  boat  for  hire,  from  New  York  to  Bos- 
ton or  Providence.  The  boat  and  goods  were  destroyed  by  fire  in  the 
sound ;  and  a  verdict  being  given  for  the  plaintiff,  the  defendants  ex- 
cepted to  the  charge,*  and  claimed : 

1.  That  they  were  not  common  carriers,  nor  subject  to  the  rules 
that  govern  common  carriers.  It  was  long  since  settled,  that  any 
man,  undertaking  for  hire  to  carry  the  goods  of  all  persons  indif- 
ferently, from  place  to  place,  is  a  common  carrier ;  Gisbourn  v.  Hurst, 
1  Salk.  249.  Common  carriers,  says  Judge  Kent,  consist  of  two  dis- 
tinct classes  of  men,  viz.,  inland  carriers  by  land  or  water,  and  car- 
riers by  sea,  and  in  the  aggregate  body  are  included  the  owners  of 
stage  coaches,  who  carry  goods,  as  well  as  passengers,  for  hire,  wag- 
oners, teamsters,  cartmen,  the  masters  and  owners  of  ships,  vessels 
and  all  water  craft,  including  steam  vessels,  and  steam  towboats  be- 
longing to  internal,  as  well  as  coasting  and  foreign  navigation,  lighter- 
men, and  ferrymen.  2  Kent's  Com.  (2d  Ed.)  598.  And  there  is  no 
difference  between  a  land  and  a  water  carrier.  Proprietors  of  Trent 
Navigation  v.  Wood,  3  Esp.  Cas.  127;  Elliott  v.  Rossell,  10  Johns.  (N. 
Y.)  7,  6  Am.  Dec.  306;  Story  on  Bail.  319,  323. 

-  For  a  common  carrier's  liability  for  injury  to  passengers,  see  part  IV, 
cliapter  II,  post,  pp.  326-344. 

3  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 

*  The  court  charged  the  jury  "that  *  *  *  those  persons,  who  undertalie 
generally  to  transport  goods  for  hire,  for  all  persons  indifferently,  and  deliver 
them  at  a  place  appointed,  are  deemed  common  carriers,  whether  by  sea  or 
land,  through  the  Sound  or  on  rivers,  in  ships  or  steamboats.  Common  carriers 
are  liable  for  goods  received  to  transport  and  deliver,  if  not  delivei'ed,  ex- 
cept the  loss  arise  from  the  act  of  God,  or  the  public  enemies.  By  the  act  of 
God  is  meant  something  in  opposition  to  the  act  of  man — something  super- 
human." 

Green  Cabb. — 2 


18  INTKODUCTOKY   TOPICS.  (Part  1 

But  it  is  said  the  rule  established  is  a  harsh  one,  and  ought  not  to  be 
extended.  Chancellor  Kent  takes  a  very  different  view  of  it.  He 
speaks  of  it  as  a  great  principle  of  public  policy,  which  has  proved  to 
be  of  eminent  value  to  the  morals  and  commerce  of  the  nation  (2d  vol. 
GO^)  ;  and  with  similar  views,  this  court  has  said,  we  are  not  dissatis- 
fied witli  the  reasons  which  originated  the  responsibility  of  common 
carriers,  and  believe  they  apply,  with  peculiar  force,  at  this  day,  and 
in  this  country,  as  it  respects  carriers  by  water,  more  especially  upon 
which  element  a  spirit  of  dangerous  adventure  has  grown  up,  which 
disregards  the  safety,  not  of  property  merely,  but  of  human  life  (Cros- 
by V.  Fitch,  12  Conn.  419,  31  Am.  Dec.  745).  And  while  we  are  not 
called  upon  to  extend  the  principle,  we  can  not  yield  to  the  argument 
that  common  carriers  are  not  to  be  responsible  when  the  loss  arises 
from  the  producing  agent  of  the  propelling  power. 

If  the  defendants  are  common  carriers,  the  question  must  be  merely 
what  are  the  liabilities  of  common  carriers?  The  answer  is,  for  all 
losses,  even  inevitable  accidents,  except  they  arise  from  the  act  of  God, 
or  the  pubHc  enemy.  Forward  v.  Pittard,  1  T.  R.  34  [post,  p.  318]  ; 
Coggs  V.  Bernard,  2  Ld.  Raym.  918  [post,  p.  317].  And  by  the  act  of 
God  is  meant,  something  superhuman,  or  something  in  opposition  to  the 
act  of  man.  Forward  v.  Pittard,  1  T.  R.  33.  In  all  cases  except  of  that 
description,  the  carriers  warrant  the  safe  delivery  of  the  goods  (per 
Kent,  C.  J.,  Elliott  v.  Rossell,  10  Johns.  [N.  Y.]  7,  6  Am.  Dec.  306); 
and  masters  and  owners  of  vessels  are  liable  as  common  carriers,  as 
well  at  sea  as  in  port.     *     *     * 

But  it  is  said,  there  is  no  case  where  the  liability  is  extended  to  fire 
on  the  high  seas.  If  the  principle  covers  such  cases,  then  it  is  to  be 
supposed  the  reason  such  cases  are  not  to  be  found,  is  that  they  have 
not  occurred,  or  v/ere  not  contested.  If  the  carrier  is  subjected  for  the 
loss  of  goods  burnt  on  land,  where  he  was  in  no  fault,  we  see  no  rea- 
son for  exempting  the  carrier  at  sea,  under  similar  circumstances.  We 
apprehend  a  rule  of  policy.  Lord  Mansfield  says,  in  the  case  alluded  to, 
to  prevent  litigation,  collusion,  and  the  necessity  of  going  into  circum- 
stances impossible  to  be  unraveled,  the  law  presumes  against  the  car- 
riers. He  is  in  the  nature  of  an  insurer.  Every  reason  here  given 
applies  as  well  to  the  owners  of  a  steamboat  as  to  the  wagoner,  whose 
carriage  was  burnt  without  his  fault,  in  the  barn  where  he  placed  it — • 
the  same  danger  of  collusion,  of  litigation,  and  the  same  difficulty  in 
unraveling  circumstances.  If  the  policy  of  the  law  requires  that  one 
shall  be  an  insurer,  we  think  the  same  policy  requires  that  the  other 
should  also  be  so  treated.  And  if  it  be  true  that  trade  will  regulate 
itself  when  the  rule  is  understood,  compensation  will  be  made,  not 
only  in  proportion  to  the  labor,  but  to  the  risk.  And  in  a  recent  case 
in  New  York,  steamboat  owners  are  treated  as  other  common  carriers. 
Powell  et  al.  v.  Alyers,  26  Wend.  591.     *     *     * 

New  trial  not  to  be  granted. 


Ch.  3)  WHAT   IS   CARRIAGE.  19 

CHAPTER  III 
WHAT  IS  CARRIAGE 


BUCKLAND  v.  ADA^IS  EXPRESS  CO. 
(Supreme  Judicial  Court  of  Massacliusetts,  1867.    97  Mass.  124,  93  Am.  Dec.  68.) 

Contract  to  recover  the  value  of  a  case  of  pistols.  In  the  superior 
court  judgment  was  entered  for  the  plaintiffs  on  agreed  facts;  and 
the  defendants  appealed  to  this  court. 

BiGELOW,  C.  J.^  We  are  unable  to  see  any  valid  reason  for  the 
suggestion  that  the  defendants  are  not  to  be  regarded  as  common  car- 
riers. The  name  or  style  under  which  they  assume  to  carry  on  their 
business  is  wholly  immaterial.  The  real  nature  of  their  occupation 
and  of  the  legal  duties  and  obligations  which  it  imposes  on  them  is  to 
be  ascertained  from  a  consideration  of  the  kind  of  service  which  they 
hold  themselves  out  to  the  public  as  ready  to  render  to  those  who  may 
have  occasion  to  employ  them.  Upon  this  point  there  is  no  room  for 
doubt.  They  exercise  the  employment  of  receiving,  carrying,  and  de- 
livering goods,  wares,  and  merchandise  for  hire  on  behalf  of  all  per- 
sons who  may  see  fit  to  require  their  services.  In  this  capacity  they 
take  property  from  the  custody  of  the  owner,  assume  entire  posses- 
sion and  control  of  it,  transport  it  from  place  to  place,  and  deliver  it 
at  a  point  of  destination  to  some  consignee  or  agent  there  authorized 
to  receive  it.  The  statement  embraces  all  the  elements  essential  to 
constitute  the  relation  of  common  carriers  on  the  part  of  the  defend- 
ants towards  the  persons  who  employ  them.  Dwight  v.  Brewster,  1 
Pick.  50,  .53.  11  Am.  Dec.  13.3  [post,  p.  34]  ;  Lowell  Wire  Fence  Co.  v. 
Sargent,  8  Allen,  189;  2  Redfield  on  Railways,  1-lG. 

But  it  is  urged  in  behalf  of  the  defendants  that  they  ought  not  to 
be  held  to  the  strict  liability  of  common  carriers,  for  the  reason  that 
the  contract  of  carriage  is  essentially  modified  by  the  peculiar  mode 
in  which  the  defendants  undertake  the  performance  of  the  service. 
The  main  ground  on  which  this  argument  rests  is,  that  persons  exer- 
cising the  employment  of  express  carriers  or  messengers  over  rail- 
roads and  by  steamboats  cannot,  from  the  very  nature  of  the  case, 
exercise  any  care  or  control  over  the  means  of  transportation  which 
they  are  obliged  to  adopt ;  that  the  carriages  and  boats  in  which  the 
merchandise  intrusted  to  them  is  placed,  and  the  agents  or  servants 
by  whom  they  are  managed,  are  not  selected  by  them  nor  subject  to 
their  direction  or  supervision  ;  and  that  the  rules  of  the  common  law, 
regulating  the  duties  and  liabilities  of  carriers,  having  been  adapted 

1  Parts  of  ttie  statement  of  facts  and  of  the  opinion  are  omitted. 


20  INTRODUCTORY  TOPICS.  (Part  1 

to  a  different  mode  of  conducting  business,  by  which  the  carrier  was 
enabled  to  select  his  own  servants  and  vehicles  and  to  exercise  a  per- 
sonal care  and  oversight  of  them,  are  wholly  inapplicable  to  a  contract 
of  carriage  by  which  it  is  understood  between  the  parties  that  the  serv- 
ice is  to  be  performed,  in  part,  at  least,  by  means  of  agencies  over 
which  the  carrier  can  exercise  no  management  or  control  whatever. 

But  this  argument,  though  specious,  is  unsound.  Its  fallacy  con- 
sists in  the  assumption  that  at  common  law,  in  the  absence  of  any  ex- 
press stipulation,  the  contract  with  an  owner  or  consignor  of  goods  de- 
livered to  a  carrier  for  transportation  necessarily  implies  that  they  are 
to  be  carried  by  the  party  with  whom  the  contract  is  made,  or  by  serv- 
ants or  agents  under  his  immediate  direction  and  control.  But  such  is 
not  the  undertaking  of  the  carrier.  The  essence  of  the  contract  is 
that  the  goods  are  to  be  carried  to  their  destination  unless  the  fulfil- 
ment of  this  undertaking  is  prevented  by  the  act  of  God  or  the  public 
enemy.  This,  indeed,  is  the  whole  contract,  whether  the  goods  are 
carried  by  land  or  water,  by  the  carrier  himself  or  by  agents  employed 
by  him.  The  contract  does  not  imply  a  personal  trust,  which  can  be 
executed  only  by  the  contracting  party  himself  or  under  his  super- 
vision b}^  agents  and  means  of  transportation  directly  and  absolutely 
within  his  control.  Long  before  the  discovery  of  steam  power,  a  car- 
rier who  undertook  to  convey  merchandise  from  one  point  to  another 
was  authorized  to  perform  the  service  through  agents  exercising  an 
.independent  employment,  which  they  carried  on  by  the  use  of  their 
own  vehicles  and  under  the  exclusive  care  of  their  own  servants. 
It  certainly  never  was  supposed  that  a  person  who  agreed  to  carry 
goods  from  one  place  to  another  by  means  of  wagons  or  stages 
could  escape  liability  for  the  safe  carriage  of  the  property  over 
any  part  of  the  designated  route  by  showing  that  a  loss  happened 
at  a  time  when  the  goods  were  placed  by  him  in  vehicles  which  he  did 
not  own,  or  which  were  under  the  charge  of  agents  whom  he  did  not 
select  or  control. 

The  truth  is  that  the  particular  mode  or  agency  by  which  the  service 
is  to  be  performed  does  not  enter  into  the  contract  of  carriage  with 
the  owner  or  consignor.  The  liability  of  the  carrier  at  common  law 
continues  during  the  transportation  over  the  entire  route  or  distance 
over  which  he  has  agreed  to  carry  the  property  intrusted  to  him.  And 
there  is  no  good  reason  for  making  any  distinction  in  the  nature  and 
extent  of  this  liability  attaching  to  carriers,  as  between  those  who  un- 
dertake to  transport  property  by  the  use  of  the  modern  methods  of 
conveyance,  and  those  who  performed  a  like  service  in  the  modes 
formerly  in  use.  If  a  person  assumes  to  do  the  business  of  a  common 
carrier,  he  can,  if  he  sees  fit,  confine  it  within  such  limits  that  it  may 
be  done  under  his  personal  care  and  supervision  or  by  agents  whom 
he  can  select  and  control.  But  if  he  undertakes  to  extend  it  further, 
he  must  either  restrict  his  liability  by  a  special  contract  or  bear  the 
responsibility  which  the  law  affixes  to  the   species  of   contract  into 


Ch.  3)  WHAT   IS    CARRIAGE.  21 

which  he  voluntarily  enters.  There  is  certainly  no  hardship  in  this, 
because  he  is  bound  to  take  no  greater  risk  than  that  which  is  imposed 
by  law  on  those  whom  he  employs  as  his  agents  to  fulfil  the  contracts 
into  which  he  has  entered. 

It  is  not  denied  that  in  the  present  case  the  goods  were  lost  or 
destroyed  while  they  were  being  carried  over  a  portion  of  the  route 
embraced  in  the  contract  with  the  plaintiffs,  and  before  they  had 
reached  the  point  to  which  the  defendants  had  agreed  to  carry  them. 
It  is  not  a  case  where  the  agreement  between  the  parties  was  that  the 
merchandise  was  to  be  delivered  over  by  the  defendants  to  other  car- 
riers at  an  intermediate  point,  thence  to  be  transported  over  an  inde- 
pendent route  to  the  point  of  destination  without  further  agency  on 
the  part  of  the  defendants.  The  stipulation  was  that  the  defendants 
should  carry  the  property  from  the  place  where  they  received  it  to 
the  point  where  it  was  to  be  delivered  into  the  hands  of  the  consignee. 
The  loss  happened  before  the  defendants  had  fulfilled  their  prom- 
ise.    *     *     * 

Judgment  for  the  plaintiffs. 


ROBERTS  V.  TURNER. 

(Supreme  Court  of  Judicature  of  New  York,  1814.     12  Johns.  232.) 

This  was  an  action  on  the  case,  against  the  defendant,  as  a  common 
carrier. 

The  defendant  resided  at  Utica,  and  pursued  the  business  of  for- 
warding merchandise  and  produce  from  Utica  to  Schenectady  and 
Albany.  The  ordinary  course  of  this  business  is,  for  the  forwarder 
to  receive  the  merchandise  or  produce  at  his  store,  and  send  it  by 
the  boatman,  who  transports  goods  on  the  Mohawk  river,  or  by  wagon 
to  Schenectady  or  Albany,  for  which  he  is  paid  at  a  certain  rate  per 
barrel,  etc. ;  and  his  compensation  consists  in  the  difference  between 
the  sum  which  he  is  obliged  to  pay  for  transportation,  and  that  which 
he  receives  from  the  owner  of  the  goods. 

The  defendant  received  from  the  plaintiff,  who  resided  in  Caze- 
novia,  in  Madison  county,  by  Aldrich,  his  agent,  twelve  barrels  of  pot 
ashes,  to  be  forwarded  to  Albany,  to  Trotter;  the  ashes  were  put  on 
board  a  boat,  to  be  carried  down  the  Mohawk  to  Schenectady,  and 
whilst  proceeding  down  the  river,  the  boat  ran  against  a  bridge  and 
sunk,  and  the  ashes  were  thereby  lost. 

The  defendant's  price  for  forwarding  goods  to  Schenectady  was 
twelve  shillings  per  barrel,  and  the  price  which  he  had  agreed  to  pay 
for  the  transporting  the  goods  in  question  to  that  place  was  eleven 
shillings ;  the  defendant  had  no  interest  in  the  freight  of  the  goods, 
and  was  not  concerned  as  an  owner  in  the  boats  employed  in  the  car- 
riage of  merchandise. 


22  INTRODUCTORY  TOPICS.  (Part  1 

The  judge  being-  of  the  opinion  that  the  testimony  did  not  make 
out  the  defendant  to  be  a  common  carrier,  nonsuited  the  plaintiff ;  and 
a  motion  was  made  to  set  aside  the  nonsuit. 

Spencer,  ].-  On  the  fullest  reflection,  I  perceive  no  grounds  for 
changing  the  opinion  expressed  at  the  circuit.  The  defendant  is  in 
no  sense  a  common  carrier,  either  from  the  nature  of  his  business, 
or  any  community  of  interest  with  the  carrier.  Aldrich,  who,  as  the 
agent  of  tlie  plaintiff,  delivered  the  ashes  in  question  to  the  defendant, 
states  the  defendant  to  be  a  forwarder  of  merchandise  and  produce 
from  Utica  to  Schenectady  and  x\lbany;  and  that  he  delivered  the 
ashes,  with  instructions  from  the  plaintiff  to  send  them  to  Colonel 
Trotter. 

The  case  of  a  carrier  stands  upon  peculiar  grounds.  He  is  held 
responsible  as  an  insurer  of  the  goods,  to  prevent  combinations,  chi- 
canery, and  fraud.  To  extend  this  rigorous  law  to  persons  standing 
in  the  defendant's  situation,  it  seems  to  me,  would  be  unjust  and  un- 
reasonable. The  plaintiff  knew,  or  might  have  known  (for  his  agent 
knew),  that  the  defendant  had  no  interest  in  the  freight  of  the  goods, 
owned  no  part  of  the  boats  employed  in  the  carriage  of  goods,  and 
that  his  only  business  in  relation  to  the  carriage  of  goods  consisted  in 
forwarding  them.  That  a  person  thus  circumstanced  should  be  deemed 
an  insurer  of  goods  forwarded  by  him,  an  insurer  too,  without  reward, 
would,  in  my  judgment,  be  not  only  without  a  precedent,  but  against 
all  legal  principles.  Lord  Kenyon,  in  treating  of  the  liability  of  a  car- 
rier (Hyde  v.  Navigation  Co.,  5  T.  R.  394),  makes  this  the  criterion  to 
determine  his  character:  Whether,  at  the  time  when  the  accident  hap- 
pened, the  goods  were  in  the  custody  of  the  defendants  as  common 
carriers.  In  Garside  v.  The  Proprietors  of  the  Trent  and  Mersey 
Navigation,  1  T.  R.  581,  the  defendants,  who  were  common  carriers, 
undertook  to  carry  goods  from  Stoneport  to  Manchester,  and  from" 
thence  to  be  forwarded  to  Stockport.  The  goods  arrived  at  IManches- 
ter,  and  were  put  into  the  defendants'  warehouse,  and  burnt  up  before 
an  opportunity  arrived  to  forward  them.  Lord  Kenyon  held,  the  de- 
fendants' character  of  carriers  ceased  when  the  goods  were  put  into 
the  warehouse.  This  case  is  an  authority  for  saying  that  the  responsi- 
bilities of  a  common  carrier  and  forwarder  of  goods  rest  on  very  dif- 
ferent principles. 

In  the  present  case,  the  defendant  performed  his  whole  undertak- 
ing; he  gave  the  ashes  in  charge  to  an  experienced  and  faithful  boat- 
man.   *    *     * 

Motion  denied.^ 

2  Part  of  the  opinion  is  omitted. 

3  For  the  uudertalcing  of  a  forwarder,  see  Hutchinss  v.  Ladd,  16  Mich.  493 
(1808);  Northern  K.  Co.  v.  Fitchburg  R.  Co.,  G  Allen,  254  (1S(J3);  Staunard  v. 
Prince.  64  N.  Y.  300  (1876).  Compare  Lee  v.  Fidelity  Co.,  51  Wash.  208,  98 
Pac.  658  (1908). 

In  Parker  v.  No.  Ger.  Lloyd  S.  S.  Co.,  71  App.  Div.  16,  76  N.  Y.  Supp.  806 
(1902),  plaintiff,  arriving  at  Bremen  on  defendant's  steamer  from  New  Yorlj, 


Ch.  3)  WHAT   IS   CARRIAGE.  23 

MANN  V.  WHITE  RIVER  LOG  &  BOOMING  CO. 

(Supreme  Court  of  Michigan,  1S81.  46  Mich.  38,  8  N.  W.  550,  41  Am.  Rep.  141.) 

Assumpsit  on  common  and  special  counts.     Plaintiff  brings  error. 

Campbell,  J.  Plaintiff  sued  defendant  for  not  delivering  part  of 
a  quantity  of  logs  which  the  company  had  in  charge  to  deliver  at 
White  Lake,  after  running  them  down  from  their  place  of  reception 
on  White  river.  As  the  case  was  passed  upon  by  the  jury  they  neces- 
sarily found  that  there  had  been  no  fault  or  negligence  in  defendant, 
and  the  only  question  before  us  is  whether  defendant  was  a  common 
carrier,  and  liable  at  all  events,  except  for  the  risks  of  a  public  enemy 
or  inevitable  casualty. 

The  duty  undertaken  by  the  defendant  was  in  accordance  with  its 
statutory  power  to  drive,  run,  raft  and  boom  logs  in  White  river  for 
any  person  having  logs  to  float  down  the  stream,  and  the  case  shows 
that  the  work  of  all  kinds  was  done  at  regular  rates,  and  for  all  alike. 

The  dispute,  therefore,  is  narrowed  down  to  the  single  question 
whether  the  handling  of  logs,  as  managed  by  the  log-driving  and  boom- 
ing companies,  is  properly  to  be  treated  as  common  carriage. 

It  is  admitted  to  be  like  common  carriage  in  the  universality  of  the 
duty,  and  by  statute  a  lien  is  given  for  charges,  not  only  on  the  specific 
logs  for  charges  on  each,  but  on  a  part  to  secure  the  whole  charges. 
Comp.  Laws,  §  2788.  The  statute  moreover  gives  a  special  remedy  to 
enforce  the  lien.  It  also  contemplates,  by  the  section  just  referred 
to,  that  it  is  only  in  the  absence  of  express  contract  that  a  uniform  rate 
is  provided  for. 

These  rights  resemble  in  important  respects  the  rights  of  common 
carriers.     But  the  statute  contains  no  declaration  that  the  companies 

wanted  his  trunl^s  sent  to  England.  Defendant  gave  him  a  receipt  worded  in 
part  as  follows:  "North  German  Lloyd  Baggage  Department,  Bremen.  Re- 
ceived from  S.  S.  Grosser  Kurfiirst  two  trunks  for  transfer  by  slow  freight  to 
Charles  N.  Parker,  via  London.  18  Waterloo  street,  Hove-Brighton."  Defend- 
ant delivered  the  trunks  to  an  express  company  to  be  carried  to  Brighton,  but 
they  were  burned  on  the  way.  Hirschberg.  J.,  said:  "The  transportation  of 
the  plaintiff  and  his  baggage  on  the  defendant's  steamer  was  complete  when 
they  reached  Bremen,  and  the  further  engagement  as  to  the  trunks  was  a  eon- 
tract  to  forward  them  by  slow  freight,  which  the  defendant  fulfilled  when  it 
'transferred'  them  In  the  usual  and  customary  way  to  a  reliable  express 
company  for  that  purpose." 

"Whether  the  defendant  used  the  term  'carry'  or  'transport'  or  'forward'  the 
goods  from  New  York  to  Louisville  is  wholly  immaterial,  so  long  as  he  un- 
dertook the  reception  of  the  goods  here  and  their  delivery  there.  His  duty 
embracec  everything  necessary  to  be  done  to  accomplish  a  delivery  of  the 
goods  at  the  place  designated,  and  the  compensation  stipulated  for  the  con- 
tract was  an  expressed  equivalent  for  the  whole  service.  Whether  the  de- 
fendant used  his  own  means  of  transportation  in  the  service  to  be  performed, 
or  made  his  own  private  arrangements  with  others  to  perform  the  actual 
transportation,  did  not  affect  his  relation  to  the  owners  of  the  goods  with 
whom  he  had  agreed  to  receive  and  deliver  them."  Woodruff,  J.,  in  Read  v 
S[)auidii!g  (N.  Y.)  5  Bosw.  3!>5,  404  (.IboU)  printed  on  another  p-iiit.  post,  p.  64. 


24  INTRODUCTORY  TOPICS.  (Part  1 

shall  be  so  treated,  and  the  whole  matter  is  left  to  be  determined  by 
legal  analogies. 

When  we  look  at  the  business  done,  it  will  be  found  to  resemble  in 
some  respects  the  business  of  carriage,  and  in  some  respects  it  is  like 
different  business,  while  in  most  things  it  is  peculiar  and  subject  to  its 
own  conditions.  It  has  one  peculiarity  in  which  it  differs  entirely  from 
common  carriage,  which  was  held  by  this  court  in  Fitch  v.  Newberry, 
1  Doug.  1,  40  Am.  Dec.  33,  to  create  no  rights  against  property  not 
voluntarily  entrusted  to  the  carrier.  One  important  part  of  the  com- 
pensated business  of  these  companies  includes  the  temporary  control 
of  logs  interfering  with  the  free  running  of  the  body  of  logs  in  the 
stream.    Comp.  Laws,  §  2793. 

The  peculiarity  which  is  most  apparent  is  that  there  is  no  carriage 
whatever  either  in  vehicles  or  by  application  of  motive  power,  unless 
in  some  emergency.  The  logs  of  various  owners  are  usually,  as  they 
were  in  the  present  case,  set  floating  promiscuously,  and  only  sorted 
and  separated  when  the  run  is  as  to  some  portion  at  least  substantially 
completed.  The  logs  are  floated  down  the  streams  by  the  force  of 
the  current,  sometimes  aided  by  dams  and  flooding,  and  if  it  were  not 
for  the  risk  of  jams,  no  interference  to  any  great  extent  would  be 
needed.  The  chief  work  of  the  companies  when  running  and  driving 
logs  is  to  see  that  they  are  kept  in  the  way  of  floating  down  stream, 
and  not  allowed  to  accumulate  in  jams  and  obstruct  the  floatage.  And 
it  is  to  prevent  this  that  the  compulsory  powers  are  exercised. 

It  is  manifest  that  this  kind  of  service  differs  very  much  from  the 
possession  and  transfer  of  articles  which  are  always  in  custody  and 
which  could  not  be  moved  except  by  the  vehicles  of  the  carrier.  Among 
the  somewhat  fanciful  reasons  given  for  the  peculiar  duties  and  respon- 
sibilities of  common  carriers,  we  cannot  always  determine  how  far 
any  of  them  actually  operated  in  shaping  the  legal  rules.  But  it  is  dan- 
gerous to  run  after  supposed  analogies  and  extend  peculiar  rules  to 
new  cases  substantially  different  from  the  old.  Courts  have  no  doubt 
settled  the  law  of  common  carriers  as  applying  to  all  classes  of  car- 
riage, however  free  from  most  of  the  special  risks  and  temptations 
which  were  relied  on  to  uphold  the  ancient  doctrines.  But  when  it  is 
sought  to  extend  the  rules  outside  of  the  carrying  business  altogether, 
we  should  not  do  this  unless  on  very  plain  reasons  of  fitness. 

Taking  heed  to  give  no  excessive  force  to  resemblances,  we  may  find, 
nevertheless,  some  other  duties  which  are  at  least  quite  as  analogous 
as  carriage.  Drovers — or,  as  the  common  law  calls  them,  agisters — 
perform  functions  not  unlike  those  of  log  drivers.  Their  animals  move 
themselves,  while  logs  are  moved  by  the  stream,  and  the  beasts  have 
a  species  of  intelligence,  while  logs  and  currents  move  unconsciously. 
Yet  the  chief  business  of  the  men  in  charge  of  both  is  to  prevent  the 
property  from  straying  or  stopping,  and  to  guide  it  where  it  belongs. 
No  one  regards  drovers  as  carriers.  Angell  on  Carriers,  §§  24,  53; 
Story  on  Bailments,  §  443.     The  entire  absence  of  any  motive  power, 


Ch.   3)  WHAT   IS   CARRIAGE.  25 

and  the  function  of  guiding  and  regulating  things  which  move  them- 
selves or  are  moved  by  some  independent  force,  make  it  impossible 
to  treat  these  classes  of  business  as  carriage  in  fact,  and  it  is  difficult 
to  see  how,  if  involving  no  carriage,  there  is  any  propriety  in  calling 
them  carriage. 

There  is  always  hardship  and  often  wrong  in  holding  persons  liable 
for  what  they  have  done  their  best  to  avoid.  While  we  are  bound  to 
respect  established  rules,  we  cannot  wisely  extend  them  beyond  their 
reasonable  application.  We  think  the  court  below  decided  correctly 
that  the  extreme  liabilities  of  common  carriers  did  not  apply  to  de- 
fendants. 

The  judgment  must  be  affirmed,  with  costs. 


THE  NEAFFIE. 
(Circuit  Court,  D.  Louisiana,  1870.     1  Abb.  465,  Fed.  Cas.  Xo.  10,06.3.) 

Woods,  Circuit  Judge.*  The  case  was  this:  On  May  28,  1866,  the 
steam  tug  Neaffie  undertook  to  tow  a  flat  or  barge  laden  with  hay  from 
Jefferson  City  to  the  flatboat  wharf  in  the  city  of  New  Orleans — a 
distance  of  three  or  four  miles.  She  made  fast  to  the  flat  and  towed 
her  down  the  stream  to  said  wharf,  the  master  and  crew  of  the  flat 
remaining  aboard  of  her.  As  she  was  about  landing  the  flat,  the  latter 
collided  with  another  flat  made  fast  to  the  wharf.  In  a  short  time  aft- 
er the  collision,  the  flat  towed  by  the  Neaffie  sunk.  The  damage  sus- 
tained by  the  sinking  of  the  flat  is  agreed  to  be  thirty-one  hundred  and 
fifty  dollars.  *  *  *  ]\To  witness  speaks  of  any  act  done  or  omitted 
showing  want  of  skill  or  care  on  the  part  of  the  Neaffie. 

Under  this  state  of  facts  the  Neaffie  cannot  be  held  liable  for  the 
damage  suffered  by  the  flat  and  cargo,  unless  she  is  made  responsible 
as  a  comm.on  carrier.  The  business  of  the  Neaffie,  as  the  evidence 
shows,  is  to  tow  flats  and  other  water  craft  from  one  point  to  another 
in  and  about  the  harbor  of  the  city  of  New  Orleans.  The  hire  for  her 
services  varies  according  to  the  bargain  made  at  the  time  the  service 
is  rendered. 

A  common  carrier  is  often  defined  to  be :  "One  who  undertakes 
for  hire  to  transport  the  goods  of  such  as  choose  to  employ  him  from 
point  to  point."  This  definition  is  very  broad,  and  in  its  application  to 
facts  is  subject  to  certain  limitations.  A  better  and  more  precise  defi- 
nition is :  "One  who  offers  to  carry  goods  for  any  person  between 
certain  termini  or  on  a  certain  route,  and  who  is  bound  to  carry  for  all 
who  tender  him  goods  and  the  price  of  carriage." 

Was  the  Neaffie  a  common  carrier  under  either  of  these  definitions? 
Chief  Justice  Marshall,  in  Boyce  v.  Anderson,  2  Pet.  (27  U.  S.)  150, 

*  Part  of  the  opinion  is  omitted. 


26  INTRODUCTORY  TOPICS.  (Part  1 

7  L.  Ed.  379  [post,  p.  359,  note  11],  says:  "The  law  applicable  to  com- 
mon carriers  is  one  of  great  rigor.  Though  to  the  extent  to  which  it 
has  been  carried,  and  in  cases  to  which  it  has  been  applied,  we  admit  its 
necessity  and  its  policy,  we  do  not  think  it  ought  to  be  carried  further 
or  applied  to  new  cases."  So  unless  the  case  of  steam  tugs  towing 
boats  and  their  cargoes  can  be  brought  strictly  within  the  definition  of 
common  carriers,  I  am  not  disposed  to  apply  to  them  the  great  rigor  of 
the  law  applicable  to  common  carriers. 

Can  it  be  said  that  the  tugboats  plying  in  the  harbor  of  New  Or- 
leans undertake  to  transport  the  goods  found  on  the  water  craft  which 
they  take  in  tow?  It  appears  to  me  that  it  is  the  boat  in  which  the 
goods  are  put  that  undertakes  to  transport  them.  The  tug  only  fur- 
nishes the  motive  power.  It  is  like  the  case  of  the  owner  of  a  wagon 
laden  with  merchandise  hiring  another  to  hitch  his  horses  to  the  wagon 
to  draw  it  from  one  point  to  another,  the  owner  of  the  wagon  riding 
in  it,  and  having  charge  of  the  goods.  In  such  a  case,  could  it  be 
claimed  with  any  show  of  reason  that  the  owner  of  the  team  was  a 
common  carrier?  The  reason  of  the  law  which  imposes  upon  the 
common  carrier  such  rigorous  responsibility  fails  in  such  a  case. 

The  tugboats  plying  in  New  Orleans  harbor  do  not  receive  the 
property  into  their  custody,  nor  do  they  exercise  any  control  over  it 
other  than  such  as  results  from  the  towing  of  the  boat  in  which  it  is 
laden.  They  neither  employ  the  master  and  hands  of  the  boat  towed, 
nor  do  they  exercise  any  authority  over  them  beyond  that  of  occa- 
sionally requiring  their  aid  in  governing  the  flotilla.  The  boat,  goods 
and  other  property  remain  in  charge  and  care  of  the  master  and  hands 
of  the  boat  towed.  In  case  of  loss  by  fire  or  robbery,  without  any 
actual  default  on  the  part  of  the  master  or  crew  of  the  towboat,  it 
can  be  hardly  contended  they  would  be  answerable,  and  yet  carriers 
would  be  answerable  for  such  loss. 

That  towboats  are  not  common  carriers  has  been  held  in  the  fol- 
lowing cases:  Caton  v.  Rumney,  13  Wend.  (N.  Y.)  387;  Alexander 
V.  Greene,  3  Hill  (N.  Y.)  9;  Wells  v.  Steam  Nav.  Co.,  2  N.  Y.  201; 
Pennsylvania,  D.  &  ]\Id.  Steam  Nav.  Co.  v.  Dandridge,  8  Gill.  &  J. 
(Md.)  248,  29  Am.  Dec.  543;  Leonard  v.  Hendrickson,  18  Pa.  40,  55 
Am.  Dec.  587. 

In  Vanderslice  v.  The  Superior,  Fed.  Cas.  No.  16,843,  Mr.  Justice 
Kane  held  a  steam  towboat  liable  as  a  common  carrier ;  but  when  the 
case  came  before  the  circuit  court,  Mr.  Justice  Grier  said  he  could  not 
assent  to  the  doctrine. 

I  am  aware  that  a  contrary  doctrine  has  been  applied  by  the  supreme 
court  of  Louisiana  to  steam  tugs  towing  between  the  city  of  New  Or- 
leans and  the  mouth  of  the  Mississippi  river.  These  towboats  are 
distinguishable  from  those  plying  in  the  harbor  of  New  Orleans ;  but 
if  it  were  otherwise,  I  think  the  weight  of  authority  and  reason  is 
with  those  who  hold  towboats  not  to  be  common  carriers. 

Holding,  then,  that  the  Neaflfie  was  not  a  common  carrier,  and  that 


Ch.   3)  WHAT    IS   CARRIAGE.  27 

she  was  bound  only  for  ordinary  diligence  and  care,  and  that  the  tes- 
timony shows  such  diHgence  and  care  on  the  part  of  the  master  of  the 
Neaffie,  it  follows  that  the  libel  must  be  dismissed  at  the  costs  of  the 
libelant.  The  cross  libel  of  claimants,  not  being  supported  by  any 
proof,  is  also  dismissed. 
Libels  dismissed." 


ROBERTSON  v.  OLD  COLONY  R.  CO. 

(Supreme  Judicial   Court  of  Massachusetts,   1S92.     156  Mass.  52.5,  31   N.  E. 
650,  32  Am.  St.  Rep.  482.) 

Tort  for  personal  injuries.  Trial  before  Bishop,  J.,  who  reported 
the  case  for  the  determination  of  this  court. '^ 

Lathrop,  J.  Unless  the  defendant  was  under  a  common  law  or 
statutory  obligation  to  carry  the  plaintiff  in  the  manner  he  was  car- 

5  In  The  Steamer  Webb,  14  Wall.  406.  414.  20  L.  Ed.  774  (1871),  Strong,  J., 
said:  'It  must  be  conceded  that  an  engagement  to  tow  does  not  Impose  either 
an  obligation  to  insure,  or  the  liability  of  common  carriers.  *  *  *  The  con- 
tract requires  no  more  than  that  he  who  undertaljes  to  tow  shall  carry  out 
his  undertaking  with  that  degree  of  caution  and  skill  which  prudent  naviga- 
tors usually  employ  in  similar  services." 

In  The  Minnehaha,  1  Lush.  335,  347  (1861),  Lord  Kingsdown  said:  "When  a 
steamboat  engages  to  tow  a  vessel  for  a  certain  remuneration  from  one  point 
to  another,  she  does  not  warrant  that  she  will  be  able  to  do  so,  and  will  do  so 
under  all  circumstances  and  at  all  hazards ;  but  she  does  engage  that  she  will 
U'se  her  best  endeavors  for  that  purpose,  and  will  bring  to  the  task  competent 
skill,  and  such  a  crew,  tackle  and  equipments  as  are  reasonably  to  be  expected 
in  a  vessel  of  her  class.  She  may  be  prevented  from  fulfilling  her  contract  by 
a  vis  major,  by  accidents  w'hich  were  not  contemplated,  and  which  may  ren- 
der the  fulfillment  of  her  contract  impossible,  and  in  such  case,  by  the  gen- 
eral rule  of  law,  she  is  relieved  of  her  obligations."  It  was  held  accordingly 
that  the'  tug  was  entitled  to  a  salvage  reward  for  rescuing  the  tow  from  ex- 
traordinary sea  perils  by  incurring  risks  and  making  exertions  not  within 
the  scope  of  her  engagement  to  tow.  A  carrier,  however,  is  not  entitled  to  sal- 
vage for  rescuing  his  cargo  from  extraordinarv  sea  perils.  The  Aguan  (D.  C.) 
48  Fed.  320  (1891) ;   The  C.  P.  Minch,  73  Fed.  8-59.  20  C.  C.  A.  70  (1896). 

Under  the  ordinary  contract  of  towage,  a  tug  is  not  a  carrier,  even  though 
it  has  exclu.'Jive  possession  of  the  tow.  Brown  v.  Clegg.  63  Pa.  51,  3  Am.  Rep. 
522  (1870):  The  D.  Xewcomb  (D.  C.)  16  Fed.  274  (1883),  semble :  The  A.  R. 
Robinson  (D.  C.)  57  Fed.  667  (189.3) ;  Knapp  v.  McCaffrey,  178  111.  107,  .52  N.  E. 
898.  69  Am.  St.  Rep.  290  (1899),  semble.  But  if  the  owner  of  tug  makes  a 
contract  of  carriage,  he  is  liable  as  a  carrier,  though  the  transportation  is 
by  agreement  performed  by  towing.  The  Northern  Belle,  9  Wall.  526,  19  L. 
Ed.  746  (1869) ;  Hibernia  Ins.  Co.  v.  St.  Louis  Trans.  Co.,  120  U.  S.  166,  7  Sup. 
Ct.  5.50.  .30  L.  Ed.  621  (1887);  The  Nettie  Quill  (D.  C.)  124  Fed.  667  (1903); 
Bassett  v.  Aberdeen,  etc.,  Co.,  120  Ky.  728.  88  S.  W.  318  (190.5).  In  Bussey  v. 
Mississippi  Valley  Trans.  Co.,  24  La.  Ann.  165,  13  Am.  Rep.  120  (1872),  the 
defendants,  owners  of  the  steamboat  Bee,  gave  a  bill  of  lading  at  St.  Louis  for 
one  barge  loaded  with  hay  and  corn  "in  apparent  good  order  in  tow  of  the 
good  steamboat  Bee  and  barges,  *  *  *  to  be  delivered  without  delay  in 
like  good  order  (the  dangers  of  navigation,  fire,  explosion,  and  collision  ex- 
cepted) to  Bussey  &  Co.,  at  New  Orleans,  La.,  on  levee  or  wharfboat,  he  or 
they  paying  freight  at  the  rate  annexed."  Howe,  J.,  said:  "We  must  think 
that  in  all  reason  the  liability  of  the  defendants,  under  such  circumstances, 
should  be  precisely  the  same  as  if,  the  barge  being  much  smaller,  it  had  been 
carried,  cargo  and  all,  on  the  deck  of  their  tug." 

G  The  statement  of  facts  is  abridged. 


28  INTRODUCTORY  TOPICS.  (Part  1 

ried  at  the  time  of  the  accident,  it  did  not  stand  towards  him  in  the 
relation  of  a  common  carrier,  and  the  plaintiff  cannot  recover.  The 
only  right  which  the  plaintiff  had  to  be  on  the  train  was  by  virtue  of  a 
contract  which  the  defendant  had  made  with  the  proprietors  of  a 
circus  whose  servant  the  plaintiff  was.  By  the  terms  of  this  contract, 
the  defendant  agreed  to  haul  certain  cars  belonging  to  the  circus  pro- 
prietors, according  to  a  schedule  of  time  fixed  by  the  agreement,  by 
which  the  work  was  to  be  done  at  18  different  times,  and  nearly  all  of 
it  at  night.  The  price  to  be  paid  was  a  gross  sum,  stated  in  the  agree- 
ment to  be  less  than  the  regular  rates  of  the  defendant  for  such  serv- 
ice. The  proprietors  agreed,  at  their  own  expense,  and  under  their 
own  supervision,  and  without  responsibility  on  the  part  of  the  defend- 
ant, to  load  and  unload  the  cars,  "to  exonerate  and  save  harmless"  the 
defendant  "from  any  and  all  claims  for  damages  to  persons  and  prop- 
erty during  the  transportation  aforesaid,  however  occurring,"  and  to 
"assume  all  risk  of  accident  from  any  cause." 

The  plaintiff's  evidence  tended  to  show  that  the  injury  occurred  by 
one  of  the  cars  running  off  the  track  by  reason  of  its  trucks  not  being 
in  proper  condition,  and  contended  that  that  fact  was  evidence  that 
proper  inspection  of  the  trucks  by  the  defendant  would  have  revealed 
their  condition,  and  that  the  defendant  was  bound  to  make  such  in- 
spection. We  need  not  consider  whether  the  offer  of  proof  was  suffi- 
cient, if  it  was  the  duty  of  the  defendant  to  inspect  the  cars,  for  we 
are  of  opinion  that  it  was  not  its'  duty  to  inspect  the  cars.  The  de- 
fendant had  no  control  over  the  condition  of  the  cars,  and  no  power  to 
interfere  with  them.  The  contract  was  simply  to  haul  the  cars  as  they 
were.  This  contract  the  defendant  had  the  right  to  make,  as  it  was 
under  no  obligation  to  draw  the  cars  as  a  common  carrier.  Coup  v. 
Railway  Co.,  5G  Mich.  Ill,  22  N.  W.  215,  56  Am.  Rep.  374. 

The  ruling  of  the  judge  below  was  right;  and,  according  to  the 
terms  of  the  report,  there  must  be  judgment  on  the  verdict  for  the 
defendant.     So  ordered.'^ 


7  In  Coup  v.  Railway  Co.,  cited  above.  Campbell,  J.,  speakinj!:  of  a  contract 
like  that  in  tbe  principal  case,  said:  "It  Is  a  misnomer  to  speak  of  such  an 
arrangement  as  an  agreement  for  carriage  at  all.  It  is  substantially  similar 
to  tbe  business  of  towing  vessels,  which  has  never  been  treated  as  carriage. 
It  is.  although  on  a  larger  scale,  analogous  to  the  business  of  furnishing  horses 
and  drivers  to  private  carriages.  Whatever  may  be  the  liability  to  third  per- 
sons who  are  injured  by  carriages  or  trains,  the  carriage  owner  cannot  hold 
the  persons  he  employs  to  draw  his  vehicles  as  carriers."' 

In  Clough  V.  Grand  Trunk  W.  R.  Co.,  l.-w  Fed.  81.  85  C.  C.  A.  1.  11  L.  R.  A. 
(N.  S.)  446.  (1907).  Lurton,  J.,  said:  "The  engine  and  train  were  under  the  con- 
trol of  servants  of  the  railway  company,  but  under  a  contract  by  which  they 
became,  for  the  purpose  of  moving  this  train,  the  special  servants  acting  under 
orders  and  directions  and  in  behalf  of  the  circus  company.  ♦  *  *  We  see 
no  illegality  in  a  railway  company  permitting  a  use  of  its  tracks  by  another 
which  does  not  substantially  disable  It  from  the  usual  and  ordinarj-  perform- 
ance of  its  corporate  duties  to  the  public.  *  *  *  This  train  under  this 
contract  was,  at  the  time,  being  run  or  operated  by  the  special  servants  of  the 


Ch.  3)  WHAT   IS   CARRIAGE.  29 


EDWARDS  V.  MANUFACTURERS'  BLDG.  CO. 

(Supreme  Court  of  Rhode  Island,  1905.    27  R.  I.  248,  61  Atl.  64G,  2  L.  R.  A. 
[N.   S.]  744,  114  Am.    St.  Rep.   37.) 

Trespass  on  the  case  for  negligence. 

Douglas,  C.  J.^  The  plaintiff  was  an  employe  of  one  of  the  de- 
fendant's tenants,  and  was  injured  by  the  falling  of  an  elevator  which 
the  defendant  maintained  and  operated  in  its  building  for  the  use  of 
its  tenants  and  their  employes  and  customers.  After  verdict  for  the 
plaintiff,  the  defendant  brings  its  petition  for  a  new  trial,  founded  up- 
:on  the  allegations  that  the  verdict  is  against  the  evidence,  that  the 
presiding  justice  erred  in  refusing  to  charge  the  jury  as  requested  by 
the  defendant,  and  that  the  damages  were  excessive. 

The  defendant's  requests  which  were  refused,  and  to  which  excep- 
tions were  taken,  were:  "(1)  The  owner  of  a  building  containing  a 
passenger  elevator  therein  operated  by  such  owner  is  not  a  common 
carrier,  and  not  an  insurer  of  the  safety  of  persons  using  the  elevator. 
(2)  If  the  jury  find  that  the  defendant  used  reasonable  care  and  pru- 
dence in  the  construction,  maintenance,  and  operation  of  the  elevator, 
the  verdict  should  be  for  the  defendant."     *     *     * 

We  think  the  first  and  second  requests  should  have  been  granted. 
A  landlord  who  maintains  an  elevator  in  his  private  building  is  not  a 
common  carrier,  and  a  common  carrier  is  not  an  insurer  of  the  safety 
of  passengers.  And  it  seems  to  us  unreasonable  to  say  that  such  a 
landlord  is  to  be  held  to  the  same  degree  of  care  which  the  law  im- 
poses upon  a  common  carrier. 

The  charge  of  the  court  was  based  upon  the  case  of  Alarker  v. 
IMitchell  (C.  C.)  54  Fed.  637,  which  holds  that  the  liability  of  a  land- 
lord maintaining  an  elevator  and  that  of  a  common  carrier  of  pas- 
sengers are  the  same ;  that  the  standard  for  both  is  the  highest  degree 
of  care  which  human  foresight  can  suggest.  This  case  is  supported  by 
Goodsell  V.  Taylor,  41  Minn.  207,  42  N.  W.  873,  4  L.  R.  A.  673,  16 

circus  company,  and  their  acts  were  the  acts  of  that  contractor,  and  not  the 
acts  of  the  railway  company." 

A  railroad  company,  which  receives  cars  from  a  connecting  carrier  for  trans- 
portation over  its  line,  presumably  takes  them  for  carriage,  and  in  absence 
of  special  contract  is  liable  for  damage  to  the  cars  themselves,  as  well  as  to 
their  contents,  though  free  from  negligence.  Pa.  R.  Co.  v.  New  Jersey,  etc., 
Co..  27  N.  .T.  Law,  100  (18.58);  Vt.  &  Mass.  R.  Co.  v.  Fitchburg  R.  Co.,  14  Allen 
(Mass.)  402,  92  Am.  Dec.  785  (1S07)  ;  Peoria,  etc.,  Co.  v.  Chicago,  etc.,  R.  Co., 
109  111.  135,  50  Am.  Rep.  605  (1884) ;  Mo.  Pac.  Ry.  Co.  v.  Chicago  &  A.  Co.  (C. 
C.)  25  Fed.  317  (1885).  It  is  otherwise  where  the  railroad  has  by  contract  the 
use  of  the  cars.  St.  Paul,  etc..  R.  Co.  v.  Minneapolis,  etc.,  Co.,  26  Minn.  243, 
2  N.  W.  700,  37  Am.  Rep.  404  (1879).  Or  undertakes  merely  to  give  its  services 
in  switching  them.  Texas  &  Pac.  Ry.  Co.  v.  Henson  (Tex.  Civ.  App.)  121  S. 
W.  1127  (19(>9).  A  terminal  company,  which  contracts  with  a  railroad  to  haul 
passenger  trains  over  the  terminal  company's  track,  does  not  become  a  car- 
rier of  passengers.    Keep  v.  Indianapolis,  etc.,  R.  Co.  (C.  C.)  9  Fed.  625  (1881). 

s  Parts  of  the  opinion  are  omitted. 


30  INTRODUCTOKY   TOPICS.  (Part  1 

Am.  St.  Rep.  TOO,  and  Treadwell  v.  Whittier,  80  Cal.  574,  23  Pac. 
266,  5  L.  R.  A.  498,  13  Am.  St.  Rep.  175.  And  the  United  States 
Court  of  Appeals  confirmed  the  decision  in  Mitchell  v.  Marker,  62 
Fed.  139,  10  C.  C.  A.  306,  25  L.  R.  A.  33,  where  the  court  say :  "We 
see  no  distinction  in  principle  between  the  degree  of  care  required 
from  a  carrier  of  passengers  horizontally  by  means  of  railway  cars  or 
stagecoaches  and  one  who  carries  them  vertically  by  means  of  a  pas- 
senger elevator.  The  degree  of  care  required  from  carriers  by  rail- 
way or  stagecoach  is  the  highest  degree.  Neither  is  an  insurer,  but 
in  regard  to  each  care  short  of  the  highest  degree  becomes  not  ordinary 
care,  but  absolute  negligence."  These  cases  seem  to  have  been  gen- 
erally followed.      Edwards  v.  Burke,  36  Wash.  107,  78  Pac.  610. 

We  cannot  assent  to  the  reasoning  on  which  they  rely.  It  is  true 
that  whether  a  common  carrier  operates  a  stagecoach,  a  railway  on 
the  surface  of  the  ground,  or  a  railway  up  a  mountain  side,  the  law 
subjects  him  to  a  certain  rule  of  responsibility;  but  the  rule  is  im- 
posed not  on  account  of  the  danger  of  the  journey,  but  because  of  his 
relation  to  the  public.  If  a  private  person  transports  a  friend  in  his 
coach  or  in  his  automobile,  he  is  liable  only  for  want  of  ordinary 
care,  though  the  danger  may  be  the  same  as  in  traveling  by  public 
coach  or  by  railway.  The  duty  of  a  landlord  towards  those  who  en- 
ter upon  his  premises  by  implied  invitation  is  to  exercise  reasonable 
care  for  their  safety,  and  we  see  no  reason  for  modifying  the  rule 
when  he  introduces  and  operates  an  elevator.  He  is  not,  Hke  a  com- 
mon carrier,  a  servant  of  the  public.  His  relations  and  duties  are 
with  a  limited  number  of  persons  who  have  contracted  with  him  for 
the  use  of  his  premises,  and  others  who  have  business  with  his  ten- 
ants. The  doctrine  of  the  cases  cited  above  is  examined  and  re- 
pudiated by  the  New  York  Court  of  Appeals  in  Griffen  v.  IManice, 
166  N.  Y.  197,  59  N.  E.  925,  52  E.  R.  A.  922,  82  Am.  St.  Rep.  630, 
decided  in  1901.     *     *     * 

As  the  defendant  must  have  been  prejudiced  by  the  erroneous  state- 
ments of  the  measure  of  its  duty,  a  new  trial  must  be  granted,  and  it 
is  unnecessary  for  us  to  comment  upon  the  evidence  presented. 

The  petition  is  granted,  and  the  cause  is  remanded  to  the  common 
pleas  division  for  further  proceedings. 


Ch.  3)  WHAT   IS   CARRIAGE.  31 


FARLEY  V.  LA  VARY. 

(Court  of  Appeals  of  Kentucky,  1900.     107  Ky.  o23,  54  S.  W.  840, 
47  L.  R.  A.  383.) 

White,  J.®  This  action  was  brought  by  appellee  for  damages  for 
the  destruction  of  certain  household  goods.  The  allegations  of  the  pe- 
tition are  that  appellant,  doing  business  as  the  Farley  Transfer  Com- 
pany, contracted,  for  hire,  to  carry  these  household  goods  from  Lex- 
ington to  Nicholasville,  and  that  while  the  goods  were  in  the  posses- 
sion of  appellant  they  were  destroyed  by  reason  of  the  negligence  of 
the  servants  and  employes  of  appellant  in  charge  of  the  wagon.  It  is 
alleged  that  appellant  is  engaged  in  the  business  of,  and  is,  a  common 
carrier.     The  damage  claimed  is  $500. 

The  answer  denied  that  appellant  was  a  common  carrier  at  all ; 
admitted  a  contract  with  appellee  to  haul  by  wagon  her  household 
goods  from  Lexington  to  Nicholasville,  and  admitted  that  while  in 
transit  certain  of  the  goods  were  destroyed  by  fire,  and  other  articles 
damaged,  but  denied  that  by  reason  thereof  appellee  was  damaged  to 
the  extent  of  $500,  or  in  any  sum  exceeding  $250.  The  answer  fur- 
ther pleaded  that  the  destruction  and  damage  to  the  goods  by  fire 
were  without  fault  on  his  part,  and  denied  that  the  fire  was  caused  by 
the  negligence  of  any  of  his  servants. 

The  issue  was  tried  before  a  jury,  who  returned  a  verdict  for  $400 
for  appellee.  Judgment  was  entered  accordingly,  and  from  that  judg- 
ment this  appeal  is  prosecuted. 

The  facts  proven  on  the  trial  without  material  controversy  are  that 
appellant,  doing  business  as  the  Farley  Transfer  Company,  had  a  num- 
ber of  vehicles  running  in  the  city  of  Lexington,  all  duly  and  regularly 
licensed  to  haul  for  hire ;  that  in  such  business  he  hauled  for  any  and 
all  persons,  and  goods  and  merchandise  of  all  kinds ;  that  he  hauled  in 
the  city  and  about  the  city,  to  the  fair  grounds,  and  other  places. 
There  was  no  dispute  as  to  the  contract  with  appellee  to  haul  the 
household  goods,  nor  of  the  fact  of  damage.  As  the  cause  of  the  fire, 
there  was  some  proof  that  the  driver  was  smoking;  and,  unless  the 
fire  caught  from  his  pipe  or  cigar,  it  is  unexplained  how  it  originated. 
The  proof  as  to  the  amount  of  the  loss  is  conflicting.     *     *     * 

If  appellant  was  a  common  carrier  in  carrying  these  goods,  his  lia- 
bility stands  admitted;  for  he  nowhere  pleads  that  the  damage  was 
caused  by  the  act  of  God,  the  public  enemy,  or  the  inherent  quality  of 
the  goods.  We  are  of  opinion  that  by  the  evidence  of  appellant  him- 
self it  is  shown  that  he  was  a  common  carrier  within  the  limits  of  the 
city  of  Lexington.  He  admits  that  he  hauled  for  all  or  any  persons, 
and  had  obtained  a  license  so  to  do.  Being  a  common  carrier,  appel- 
lant could  have  been  compelled  to  haul  for  appellee  within  the  terri- 

9  Parts  of  the  opinion  are  omitted. 


;J2  INTRODUCTORY  TOPICS.  (Part  1 

tory  in  which  he  was  engaged,  but  she  could  not  have  compelled  him  to 
go  outside  his  territorial  limit.  In  this  case,  however,  he  contracted  to 
go  beyond  his  territory. 

Applying  the  facts  to  a  railroad,  we  should  say  he  agreed  to  go  be- 
yond the  end  of  his  line.  It  has  repeatedly  been  held  that,  while  a 
railroad  cannot  be  compelled  to  accept  and  agree  to  carry  goods  to 
points  beyond  its  line,  yet  it  might  do  so.  If  the  carrier  contracted  to 
convey  beyond  its  line,  it  would  be  liable  as  a  common  carrier  for  the 
whole  distance.     *     *     * 

There  appears  to  us  no  error  in  the  record.  The  judgment  is 
therefore  affirmed,  with  damages.^" 

10  Ace.  Robertson  v.  Kennedy,  2  Dana,  430,  26  Am.  Dec.  4GG  (1S.34) ;  Jackson 
Arch.  Iron  Works  v.  Hurlbut.  post,  p.  38.  note.  Compare  Armfield  v,  Humph- 
rey, 12  111.  App.  90  (18S2);  Williams  v.  O'Daniels,  3.^;  Tex.  .542  (1872);  Gurley 
T.\\rmstead,  148  Mass.  207,  19  N,  E.  389.  2  L.  R,  A.  80,  12  Am.  St.  Rep.  555 
(1889). 

Receivers  operating  a  railroad  are  common  carriers,  and,  where  not  exempt 
from  suit  as  otticers  of  the  court,  are  liable  for  nonnegliseut  loss  of  goods. 
Blumenthal  v.  Braiuerd.  38  Vt.  402,  91  Am.  Dec.  3.50  (1S6G) ;  Paige  v.  Smith, 
99  Mass.  395  (1868).  Trustees  for  bondholders  operating  a  railroad  after  fore- 
closure are  common  carriers.     Rogers  v.  Wheeler,  43  N.  Y.  ,598  (1871). 

A  j)ilot  is  not  a  carrier,  though  in  charge  of  the  navigation  of  the  ship.  The 
Tom  Lysle  (D.  C.)  48  Fed.  690  (1891). 

A  master  of  a  vessel,  who  hires  seamen,  navigates  his  ship,  and  signs  bills  of 
lading  so  as  to  be  personally  liable  to  shippers  of  cargo  as  a  common  carrier, 
is  not  liable  as  a  carrier  to  his  employer;  and,  though  the  latter  has  had  to 
pay  shipiters  for  damage  to  cargo,  he  has  no  remedy  against  the  master,  un- 
less the  loss  was  due  to  the  master's  fault.  Mepham  v.  Biessel,  9  Wall.  370, 
19  L.  Ed.  677  (1869),  atfirming  Bissell  v.  Mepham,  1  Woolw.  225,  Fed.  Cas.  No. 
1,450  (1868). 

A  ceinal  company  is  not  a  carrier,  if  it  does  not  operate  the  boats  which 
pass  over  it.    Watts  v.  Canal  Co..  64  Ga.  88,  37  Am.  Rep.  .53  (1879). 

Nor  is  one  who  maintains  a  toll  bridge.  Grigsby  v.  Chappell,  5  Rich.  (S.  C.) 
443  (1852) ;  Keutuckv  Bridge  Co.  v.  Louisville  &  N.  R.  Co.  (C.  C.)  37  Fed.  567, 
616.  2  E.  R.  A.  2.S9  (1889). 

Piihlic  hackmen  are  generally  treated  as  carriers.  Lemon  v.  Chan.slor,  68 
Mo.  340,  30  Am.  Rep.  799  (1878) ;  Bonce  v.  Railwav  Co..  .53  Iowa,  278,  5  N. 
W.  177,  36  Am.  Rep.  221  (1880).  But  see  Ross  v.  Hill,  2  C.  B.  877  (1846); 
Brown  v.  N.  Y.,  etc.,  R.  Co..  75  Hun.  3.55,  27  N.  Y.  Supp.  69,  71  (1894).  As  to 
keepers  of  livery  stables,  see  Siegrist  v.  Arnot.  86  Mo.  200,  56  Am.  Rep.  424 
(188.5) ;  Pavne  v.  Halstead,  44  111.  App.  97  (1892) ;  Erickson  v.  Barber,  83  Iowa, 
367,  49  N.  W.  838  (1891);  Stanley  v.  Steele,  77  Conn.  688,  60  Atl.  640,  69  L.  R. 
A.  561  (1905) ;  Copeland  v.  Draper,  157  Mass.  558,  32  N.  E.  944,  19  L.  R.  A. 
283.  34  Am.  St.  Rep.  314  (1893). 

DiMrUt  messenger  eompanies  have  been  held  not  to  be  carriers,  on  the 
ground  that  they  merelv  furnished  messeusers  whom  their  customers  might 
employ.  Haskell  v.  Boston  D.  M.  Co..  190  Mass.  189.  76  N.  E.  215.  2  L. 
R.  A.  (X.  S.)  1091.  112  Am.  St.  Rep.  324  (1906);  Hirsh  v.  Am.  Dist.  Tel.  Co., 
112  App.  Div.  265,  98  N.  Y.  Supp.  371  (1906).  But  in  Am.  Dist.  Tel.  Co.  v. 
Walker.  72  Md.  454.  20  Atl.  1,  20  Am.  St.  Rep.  479  (1890),  where  a  messenger 
was  employed  to  drive  horses  to  a  stable,  it  was  held  that  the  jury  were  .ius- 
titied  in  finding  that  the  company  undertook  to  do  the  driving  through  their 
servant,  so  as  to  be  liable  for  injury  to  the  horses  by  his  negligence.  And  in 
Sanford  v.  Am.  Dist.  Tel.  Co.,  13  Misc.  Rep.  88,  34  n'  Y.  Supp.  144  (189.5),  a^d 
Gilman  v.  Postal  Tel.  Co.,  48  Misc.  Rep.  372.  95  N.  Y.  Supp.  504  (1905),  com- 
panies wliose  boys  carried  parcels  were  considered  to  be  common  carriers. 

Railroads  and  others  transporting  the  mail  act.  not  as  carriers,  but  as  per- 
sons in  goverimient  service,  and  are  not  liable  to  owners  of  lost  letters.  Fos- 
ter V.  Metts,  55  Miss.  77,  30  Am.  Rep.  504  (1877);   Central  R.  Co.  v.  Lampley, 


Ch.  3)  WHAT   IS   CARRTAGE.  33 

76  Ala.  357,  52  Am.  Rep.  344  (1SS4),  at  least  in  the  absence  of  fault ;  German 
St.  Bk.  V.  Minneapolis,  etc.,  Co.,  113  Fed.  414  (1901) ;  Boston  Ins.  Co.  v.  Chi- 
cago, etc.,  R.  Co.,  118  Iowa,  423,  92  N.  W.  88,  59  L.  R.  A.  796  (1902). 

Telegraph  companies.  In  Fowler  v.  Western  Union  Co.,  80  Me.  381,  387,  15 
Atl.  29,  30.  6  Am.  St.  Rep.  211  (1888).  Foster,  J.,  said:  "It  is  now  perfectly 
well  settled,  by  the  great  weight  of  judicial  authority,  that  although  telegraph 
companies  are  engaged  in  what  may  appropriately  be  termed  a  public  employ- 
ment, and  are  therefore  bound  to  transmit,  for  all  persons,  messages  preseutetl 
to  them  for  that  purpose,  they  are  not  common  carriers  in  the  strict  sense  of 
the  term.  They  do  not  insure  absolutely  the  safe  and  accurate  transmission 
of  messages  as  against  all  contingencies,  but  they  are  bound  to  transmit  them 
with  care  and  diligence  adequate  to  the  business  which  they  undertake,  and 
for  any  failure  in  such  care  and  diligence  they  become  responsible." 

And  in  Primrose  v.  Western  Union  Co.,  154  U.  S.  1,  14,  14  Sup.  Ct.  1098,  1101, 
38  L.  Ed.  883  (1894),  Gray,  J.,  said:  "The  carrier  has  the  actual  and  manual 
possession  of  the  goods ;  the  Identity  of  the  goods  which  he  receives  with 
those  Avhich  he  delivers  can  hardly  be  mistaken ;  their  value  can  be  easily 
estimated,  and  may  be  ascertained  by  inquiry  of  the  consignor,  and  the  car- 
rier's compensation  fixed  accordingly:  and  his  liability  in  damages  is  measured 
by  the  value  of  the  goods.  But  telegraph  companies  are  not  bailees  in  any 
sense.  They  are  intrusted  with  nothing  but  an  order  or  message,  which  is 
not  to  be  carried  in  the  form  or  characters  in  which  it  is  received,  but  is  to 
be  translated  and  transmitted  through  different  symbols  by  means  of  elec- 
tricity, and  is  peculiarly  liable  to  mistakes.  The  message  cannot  be  the  sub- 
ject of  embezzlement ;  it  is  of  no  intrinsic  value ;  its  importance  cannot  be 
estimated,  except  by  the  sender,  and  often  cannot  be  disclosed  by  him  without 
danger  of  defeating  his  purpose ;  it  may  be  wholly  valueless,  if  not  forwarded 
immediately ;  and  the  measure  of  damages,  for  a  failure  to  transmit  or  deliver 
it,  has  no  relation  to  any  value  of  the  message  itself,  except  as  such  value 
may  be  disclosed  by  the  message,  or  be  agreed  between  the  sender  and  the 
company." 

A  sleeping  car  company  is  neither  a  carrier  nor  an  innkeeper.  Pullman,  etc., 
Co.  V.  Gavin,  93  Tenn.  53,  23  S.  W.  70,  21  L.  R,  A.  298,  42  Am.  St.  Rep.  902 
(1893).  It  does  not  imdertake  that  its  cars  will  nui  to  destination.  Calhoun 
V.  Pullman,  etc.,  Co.  (C.  C.)  149  Fed.  546  (1906).  But  it  does  undertake  that 
they  usually  do  so  run,  Pullman,  etc.,  Co.  v.  King,  99  Fed.  380,  39  O.  O.  A. 
573  (1900).  As  to  its  duty  to  protect  its  passengers,  see  post,  p.  82,  note. 
Green  Oaee. — 3 


34  INTRODUCTORY  TOPICS.  (Part  1 

CHAPTER  IV 
WHAT  IS  A  COMMON  CARRIER 


Parker,  C.  J.,  in  DWIGHT  v.  BREWSTER,  1  Pick.  (Mass.)  50,  11 
Am.  Dec.  133  (1822):  On  the  second  count,  which  charges  the  de- 
fendants as  common  carriers,  we  think  the  facts  proved  are  sufficient 
to  constitute  them  such.  Packages  were  usually  taken  in  the  stage- 
coach for  transportation  ;  large  packages  were  entered  in  the  book  kept 
for  the  proprietors,  and  compensation  taken  for  their  use.  That  the 
principal  business  was  to  carry  the  mail  and  passengers  is  no  reason 
why  the  proprietors  should  not  be  common  carriers  of  merchandise, 
etc.  A  common  carrier  is  one  who  undertakes,  for  hire  or  reward,  to 
transport  the  goods  of  such  as  choose  to  employ  him  from  place  to 
place.  This  may  be  carried  on  at  the  same  time  with  other  business. 
The  instruction  of  the  judge  in  this  particular,  that  the  practice  of  tak- 
ing parcels  for  hire,  to  be  conveyed  in  the  stagecoach,  constituted  the 
defendants  common  carriers,  we  think  was  right. 


BELL  V.  PIDGEON. 

(District  Court,  E.  D.  New  York,  ISSl.     5  Fed.  R.  634.) 

In  Admiralty. 

Benedict,  J.^  This  action  is  brought  to  recover  the  value  of  a  quan- 
tity of  chalk  lost  while  being  transported  through  the  East  River  upon 
a  vessel  called  Scow  No.  1,  owned  by  the  defendant.  The  occupa- 
tion of  the  defendant  is  that  of  a  dock  and  bridge  builder.  In  his 
business  he  had  occasion  to  transport  dirt  and  stones,  and  for  that  pur- 
pose he  owned  and  used  several  scows — flats  constructed  solely  to  car- 
ry rough  matter  upon  their  decks,  and  moved  by  means  of  tugs.  The 
defendant  employed  these  scows  for  the  most  part  in  his  own  business, 
but  he  sometimes  chartered  a  scow  to  other  parties  by  the  day  or  the 
month.  He  was  not  in  the  carrying  trade,  and  was  not  in  the  habit  of 
transporting  any  cargo  except  his  own.  His  scows,  when  employed 
by  him,  were  used  solely  to  transport  his  own  articles  in  his  own  busi- 
ness ;  when  chartered  to  others,  any  transporting  done  by  means  of 
them  was  done  at  the  expense  of  the  charterer. 

In  the  present  instance  the  libelant  applied  to  the  defendant  to  carry 
for  him  a  quantity  of  chalk  from  alongside  the  ship  Ruby,  in  the  North 
River,  to  Newtown  creek,  at  so  much  per  ton.    The  employment  was 

1  Parts  of  the  opinion  are  omitted. 


Ch.  4)  WHAT   IS   A    COMMON    CAERIEB.  35 

accepted,  and,  in  pursuance  thereof,  about  200  tons  of  chalk  were  there- 
after laden  on  Scow  Xo.  1  to  be  transported  on  the  deck  thereof 
through  the  East  River  to  Xewtown  creek.  The  method  of  loading  the 
chalk  upon  deck  was  in  accordance  with  the  understanding  of  the  par- 
ties, and  no  fault  is  shown  either  in  regard  to  the  quantity  of  chalk 
taken  on  board  the  scow,  or  in  regard  to  the  method  of  stowing  it. 
When  loaded  the  scow  was  taken  in  tow  by  a  tug  belonging  to  the  de- 
fendant, and  proceeded  on  her  way  to  Xewtown  creek.  While  passing 
up  the  river  three  large  sound  steamers  were  met  about  off  Grand 
street,  coming  down  the  stream  nearly  abreast.  The  tug,  with  the  scow 
upon  a  hawser  astern,  was  about  in  the  middle  of  the  river,  going  at 
half  speed.  As  the  steamers  approached,  the  tug  blew  her  whistle 
several  times,  and  when  they  came  nearer  the  pilot  waved  his  hat  to 
call  their  attention ;  he  also  stopped  his  engine.  One  of  the  steamers 
passed  the  scow  to  port,  and  two  on  the  starboard.  On  passing  they 
went  so  near  and  at  such  speed  as  to  create  a  swell,  which  broke  over 
the  scow  and  caused  her  to  roll  so  that  she  dumped  all  the  chalk  into 
the  river.  There  was  room  for  the  steamers  to  have  passed  at  a  greater 
distance,  and  they  might  have  reduced  their  speed,  in  either  of  which 
cases  the  swell  would  not  have  been  dangerous.     *     *     * 

As  no  negligence  on  the  part  of  the  defendant  or  his  agents  has 
been  shown,  the  damage  in  question  might  no  doubt  be  held  to  have 
arisen  from  a  peril  of  the  seas,  within  the  meaning  of  the  ordinary 
exception  of  a  bill  of  lading.  But  the  defendant's  contract  contained 
no  exception.  It  was  an  unqualified  contract  to  transport  and  deliver ; 
and,  if  it  was  made  by  the  defendant  in  the  capacity  of  a  common  car- 
rier, his  responsibility  was  that  which  the  law,  upon  grounds  of  pub- 
lic polic}',  has  attached  to  every  common  carrier,  namely,  that  of  an 
insurer  against  all  loss  or  damage,  unless  caused  by  act  of  God  or  of 
the  public  enemy. 

The  decision  of  the  case  turns,  therefore,  as  I  view  it,  upon  the 
question  whether  the  defendant  was  transporting  this  chalk  in  the  ca- 
pacity of  a  common  carrier.  "To  constitute  one  a  common  carrier, 
he  must  make  that  a  regular  and  constant  business ;  or,  at  all  events,  he 
must  for  the  time  hold  himself  ready  to  carr)'  for  all  persons  indef- 
initely who  choose  to  employ  him."  Redfield  on  Carriers,  15.  *  *  * 
In  the  present  case  the  defendant  did  not  hold  himself  out  as  ready 
to  transport  the  goods  of  others.  The  proof  is  that  he  did  no  more  than 
to  use  his  scows  in  his  own  business,  or  to  let  them  to  others  to  be  used 
in  their  business. 

Upon  the  facts  of  this  case,  I  am,  therefore,  of  the  opinion  that  the 
defendant's  occupation  was  not  that  of  a  common  carrier,  and  that  his 
relation  to  the  chalk  in  question  was  simply  that  of  bailee  for  hire. 
This  being  so,  in  the  absence  of  negligence  he  is  not  liable  for  the  loss 
in  question,  unless  it  be  also  held  here,  as  was  held  in  Xugent  v.  Smith, 
3  Asp.  M.  L.  C.  87,  L.  R.  1  C.  P.  D.  19,  26-33,  that  every  shipowner 
who  carries  goods  on  board  his  ship  for  hire,  is,  in  the  absence  of  ex- 


36  INTRODUCTORY  TOPICS.  (Part  1 

press  stipulation  to  the  contrary,  by  reason  of  his  acceptance  of  the 
g:oods,  liable  as  an  insurer,  except  as  against  the  act  of  God  or  the 
public  enemy. 

The  same  position  was  taken  by  Brett,  J.,  in  the  Liver  Alkali  Works 
V.  Johnson,  2  Asp.  M.  L.  C.  337,  L.  R.  9  Ex.  338,  344,  but  it  does  not 
seem  to  have  been  the  opinion  of  the  court  in  that  case ;  and  upon  the 
appeal  in  Nugent  v.  Smith  it  was  distinctly,  and  I  think  successfully, 
challenged  by  the  Chief  Justice.  3  Asp.  M.L.  C.  198,  h.  R.  1  C.  P.  D. 
423,  427-434.  No  American  case  that  I  know  of  has  so  extended  the 
rule  applicable  to  common  carriers;  and  I  think  it  will  be  found  im- 
possible to  apply  so  rigorous  a  rule  to  the  transportation  business  of  this 
country. - 

Upon  these  grounds  I  am  of  opinion  that  the  libel  must  be  dismissed. 


INGATE  V.  CHRISTIE. 

(Court  of  Queen's  Beucb,  1850.    3  Carr.  &  K.  61.) 

At  nisi  prius. 

Assumpsit.  The  declaration  stated,  that  the  defendant  agreed  to 
carry  lOU  cases  of  figs  from  a  wharf  to  a  ship,  and  that  by  the  negli- 
gence of  the  defendant's  servants  the  figs  were  lost.  Plea :  Non  as- 
sumpsit. "^ 

It  was  proved  that,  on  the  14th  of  February,  1850,  the  defendant 
was  employed  by  the  plaintiffs,  who  are  merchants,  to  take  100  cases 
of  figs  in  his  lighter  from  Mills'  Wharf,  in  Thames  street,  to  the  Mag- 
net steamer,  which  lay  in  the  River  Thames,  and  that  as  the  figs  were 
on  board  the  lighter,  which  was  proceeding  with  them  to  the  Magnet, 
the  lighter  was  run  down  by  the  Menai  steamer  and  the  figs  all  lost. 
It  was  proved  that  the  defendant  had  a  counting  house  with  his  name 
and  the  word  "lighterman"  on  the  doorposts  of  it,  and  that  he  carried 
goods  in  his  lighters  from  the  wharves  to  the  ships  for  anybody  who 
employed  him,  and  that  the  defendant  was  a  lighterman  and  not  a 
wharfinger. 

Alderson,  B.  Everybody  who  undertakes  to  carry  for  any  one  who 
asks  him,  is  a  common  carrier.  The  criterion  is,  whether  he  carries 
for  particular  persons  only,  or  whether  he  carries  for  every  one.     If  a 

2  Ace.  Lamb  v.  Parkman,  1  Spr.  343.  Fed.  Cas.  No.  8,020  (1857),  semble;  Gage 
V.  Tirrell,  9  Allen  (Mass.)  209,  309  (1864).  semble;  Allen  v.  Sackrider,  37  N. 
Y.  341  (1867) ;  Sumner  v.  Caswell  (D.  C.)  20  Fed.  249  (1SS4),  semble;  The  Dau 
(D.  C.)  40  Fed.  091  (1889).  But  see  Molloy,  De  Jure  Maritime,  bk.  II,  c.  2,  §§  2, 
8 ;  Carver,  Carriage  by  Sea,  §§  4,  5 ;  2  Select  Pleas  in  the  Court  of  Admiralty, 
l.xxxi:  Morse  v.  Slue,  post,  p.  333;  Boucher  v.  Lawson.  Lee's  Hardwicke,  194, 
199  (173.->) ;  Baxter's  Leather  Co.  v.  Royal  Mail  Co.,  [1908]  2  K.  B.  626 ;  Tur- 
ney  v.  Wilson,  7  Yerg.  (Teun.)  340,  27  Am.  Dec.  515  (1835);  Moss  v.  Bettis, 
4  Heisk.  (Tenn.)  661,  13  Am.  Rep.  1  (1871).  And  compare  The  Commander 
in  Chief,  1  Wall.  43,  51,  17  L.  Ed.  609  (1863) ;  McClure  v.  Hammond,  1  Bay 
(S.  0.)  99,  1  Am.  Dec.  598  (1790). 


Ch,  4)  WHAT   IS   A    COMMON    CARRIER.  37 

man  holds  himself  out  to  do  it  for  every  one  who  asks  him,  he  is  a  com- 
mon carrier ;  but  if  he  does  not  do  it  for  every  one,  but  carries  for  you 
and  me  only,  that  is  matter  of  special  contract.  Here  we  have  a  per- 
son with  a  counting  house,  "lighterman"  painted  at  his  door,  and  he 
offers  to  carry  for  every  one. 

Wise,  for  the  defendant:  Does  your  Lordship  think  that  the  defend- 
ant is  a  common  carrier?  *  *  *  Jn  the  case  of  Brind  v.  Dale,  8  C. 
&  P.  207,  Lord  Abinger,  C.  B.,  intimated  that  in  his  opinion  a  town 
carman  was  not  a  common  carrier,  although  he  took  chance  jobs  from 
any  one,  much  as  a  lighterman  does ;  and  so  in  the  case  of  Ross  v. 
Hill,  2  C.  B.  877,  the  Court  of  Common  Pleas  considered  that  a  cab 
owner  was  not  a  common  carrier;  and  from  the  case  of  Coggs  v.  Ber- 
nard, 2  Ld.  Raymond,  909  [post,  p.  317],  and  the  older  authorities,  it 
appears  that  a  common  carrier  is  one  who  carries  goods  from  one  town 
to  another.    *    *    * 

Alderson,  b.  *  *  *  There  may  be  cases  on  all  sides,  but  I  will' 
adhere  to  principle  if  I  can.  If  a  person  holds  himself  out  to  carry 
goods  for  every  one  as  a  business,  and  he  thus  carries  from  the  wharves 
to  the  ships  in  harbor,  he  is  a  common  carrier,  and  if  the  defendant  is 
a  common  carrier  he  is  liable  here.  There  must  be  a  verdict  for  the 
plaintiff. 


FAUCHER  V.  WILSON. 

(Supreme  Court  of  New  Hampshire,  1895.     G8  N.  H.  338.  38  Atl.   1002, 

39  L.  R.  A.  431.) 

Case  against  the  defendant  as  a  common  carrier  of  goods,  for  the 
loss  of  a  hogshead  of  molasses.     Facts  found  by  the  court. 

The  defendant  was  engaged  in  the  business  of  trucking  goods  for 
hire  from  the  railway  freight  station  in  Manchester  to  different  stores 
in  the  city.  On  one  of  the  warmest  days  in  the  summer  of  1891,  he 
transported  a  hogshead  of  molasses  from  the  freight  station  to  the 
plaintiff's  store,  on  Elm  street,  a  distance  of  a  little  over  half  a  mile. 
By  reason  of  the  fermentation  of  the  molasses,  the  hogshead  burst 
while  being  unloaded.  The  plaintiff's  loss  was  not  caused  by  any 
want  of  ordinary  care  on  the  part  of  the  defendant.  Each  party 
moved  for  judgment  in  his  favor. 

Chase,  J.  It  is  not  found  that  the  defendant  was  a  common  car- 
rier. The  finding  that  he  was  engaged  in  the  business  of  trucking 
goods  for  hire  from  the  railway  freight  station  to  different  stores 
in  the  city  lacks  the  distinguishing  characteristic  of  a  common  car- 
rier, namely,  the  holding  of  oneself  out  as  ready  "to  carry  at  reason- 
able rates  such  commodities  as  are  in  his  line  of  business,  for  all 
persons  who  offer  them,  as  early  as  his  means  will  allow."  [Citing 
authorities.]  The  inference  from  this  finding  is  as  strong,  to  say  the 
least,  that  the  defendant's  business  was  limited  to  trucking  for  par- 


38  INTRODUCTORY  TOPICS.  (Part  1 

ticular  customers  at  prices  fixed  in  each  case  by  special  contract,  as 
it  is  that  he  held  himself  out  as  ready  to  truck  for  the  public  indis- 
criminately, at  reasonable  prices.  If  such  was  the  character  of  his 
business,  he  was  not  an  insurer  of  the  plaintiff's  goods  (there  being 
no  special  contract  of  insurance),  and  was  only  bound  to  exercise  ordi- 
nary care  in  respect  to  them. 

If  the  defendant  was  a  common  carrier,  he  is  not  liable  for  the 
plaintiff's  loss,  since  it  happened  from  the  operation  of  natural  laws, 
which  a  common  carrier  does  not  insure  against.^  [Citing  authori- 
ties.] In  Farrar  v.  Adams,  1  Bull.  N.  P.  69,  it  is  said  that  "if  an  ac- 
tion were  brought  against  a  carrier  for  negligently  driving  his  cart, 
so  that  a  pipe  of  wine  was  burst,  and  was  lost,  it  would  be  good  evi- 
dence for  the  defendant  that  the  wine  was  upon  the  ferment,  and, 
when  the  pipe  burst,  he  was  driving  gently."  It  being  found  that  the 
plaintiff's  loss  was  not  due  to  any  want  of  ordinary  care  on  the  part 
of  the  defendant,  there  must  be  judgment  for  the  defendant.* 

3  For  this  subject,  see  post,  p.  353  et  seii. 

4  Aec.  Bassett  v.  Aberdeen,  etc.,  Co.,  120  Ky.  728.  88  S.  W.  318  (lOOo) ;  Var- 
ble  V.  Bigley,  14  Bush  (Ky.)  698.  20  Am.  Rep.  435  (1879).  See.  also.  Meisner  v. 
Detroit  Co.,  154  Mich.  545,  118  N.  W.  14,  19  L.  R.  A.  (N.  S.)  872  (1908),  steam- 
boat company  carrvinj?  passengers  to  its  amusement  park. 

In  Jackson*  Architectural  Iron  Works  v.  Hurlbut,  158  N.  Y.  34.  37.  52  X.  E. 
GG5,  0(50.  70  Am.  St.  Rep.  432  (1899),  O'Brien,  J.,  said:  "The  defendants  adver- 
tised themselves  as  general  truckmen,  their  particular  specialty  being  the  mov- 
ing of  heavy  machinery.  They  kept  and  maintained  for  this  purpose  a  large 
number  of  trucks  and  horses,  and  the  necessary  help  for  the  prosecution  of 
this  business.  On  this  state  of  facts  there  was  no  legal  error  in  the  refusal  of 
the  learned  trial  judge  to  instruct  the  jury  that  the  defendants  were  not  com- 
mon carriers.  Truckmen,  wagoners,  cartmen,  and  porters,  who  undertake  to 
carry  goods  for  hire  as  a  common  emploj-ment  in  a  city,  or  from  one  town  to 
another,  are  common  carriers.  It  is  not  necessary  that  the  exclusive  busi- 
ness of  the  parties  shall  be  carrying.  Where  a  person  whose  principal  pur- 
suit is  farming  solicits  goods  to  be  carried  to  the  market  town  in  his  wagon 
on  certain  occasions,  he  makes  himself  a  common  carrier  for  those  wlio  employ 
him.  The  circumstance  that  the  defendants  had  no  re.£rular  tariff  of  charges 
for  their  work,  but  that  a  special  price  was  fixed  by  agreement,  does  not  change 
the  relation.  The  necessity  for  a  different  charge  in  each  case  arises,  of 
course,  out  of  the  difference  in  labor  in  handling  articles  of  great  bulk.  The 
charge  in  each  case  may  he  proportioned  to  the  risk  assumed,  and  commen- 
surate with  the  carrier's  responsibility  as  such.  A  common  carrier  is  one  who, 
by  virtue  of  his  calling,  undertakes,  for  compensation,  to  transport  personal 
property  from  one  place  to  another  for  all  such  as  may  choose  to  emplo.v  him ; 
and  every  one  who  undertakes  to  carry  for  compensation  the  goods  of  all  per- 
sons indifferently,  is,  as  to  liability,  to  be  deemed  a  common  carrier." 

Compare  Farley  v  Lavary,  ante,  p.  31,  and  cases  cited  in  note  thereto.  See, 
also,  Gordon  v.  Hutchinson,  1  Watts  &  S.  (Pa.)  285,  37  Am.  Dec.  464  aS41) ; 
Samms  v.  Stewart.  20  Ohio,  69,  55  Am.  Dec.  445  (1851) :  Fish  v.  Clark,  49  N. 
Y,  122  (1872) ;    Hastings  Ex.  Co.  v.  Chicago,  135  111.  App.  268  (1907). 

Though  a  shipowner  makes  it  his  business  to  carry  cargoes  for  the  best 
freights  he  can  obtain,  and  uses  his  vessel  for  no  other  purpose,  he  is  not 
necessjirily  a  common  carrier.  See  Lamb  v.  Parkman,  1  Spr.  343,  Fed.  Cas.  No. 
8,020  (1857);  The  Dan  (D.  C.)  40  Fed.  691  (1889) ;  Liver  Alkali  Co.  v.  Johnson, 
L.  R.  7  Ex.  267  (1874).  Compare  Hahl  v.  Laux,  42  Tex.  Civ.  App.  182,  93  S.  W. 
1080  (1906);    Hill  v.  Scott,  [1895]  2  Q.  B.  371. 

In  Nugent  v.  Smith,  L.  R.  1  C.  P.  D.  19,  28  (1875),  Brett,  J.,  said:  "A  ship- 
owner who  puts  his  ship  into  a  broker's  hands  to  procure  a  charter  does  not 
hold  himself  out  to  carry  for  the  first  person  who  offers.    Neither  does  a  mas- 


Ch.  4)  WHAT    IS    A   COMMON    CARRIER.  39 

HARRINGTON  v.   McSHANE 
(Supreme  Court  of  Pennsylvania,  1834.    2  Watts,  443,  27  Am.  Dec.  289.) 

Writ  of  error.  The  trial  court  charged  the  jury  that  if  they  be- 
Heved  the  evidence  the  defendants  were  Hable.  Defendants  assign 
this  instruction  as  error. 

Sergeant,  J.^  It  appears  by  the  evidence  that  it  is  the  usage  on 
the  Western  waters  for  steamboat  owners,  in  addition  to  the  business 
of  carrying  goods,  to  act  as  factors,  to  make  sales  and  returns,  with- 
out being  paid  any  other  consideration  than  the  freight,  and  that  the 
defendants,  by  their  agent  Hyatt,  who  was  also  part  owner  in  the  boat, 
received  the  plaintiff's  flour  to  transport  to  Louisville  and  sell,  in  con- 
sideration of  being  paid  a  certain  freight  per  barrel.  The  flour  was 
taken  there  and  sold,  and  the  money  which  it  produced  was  in  the  boat 
on  its  return  up  the  river,  separated  from  other  moneys,  and  was 
destroyed  by  a  fire  which  consumed  the  boat  and  its  contents.  This 
fire  was  the  result  of  accident,  without  any  neglect  of  the  defend- 
ants or  the  master  and  crew ;  the  latter  having  used  every  possible 
exertion  to  rescue  the  money  from  the  flames.    *     *    * 

The  question  of  the  defendant's  responsibility  in  the  present  case 
depends  on  the  character  in  which  they  held  the  money  when  the  loss 
occurred.  If  they  were  merely  factors,  they  are  not  responsible;  if 
they  were  carriers,  the  reverse  must  be  the  case.  Had  the  flour  been 
lost  on  the  descending  voyage  by  a  similar  accident,  there  could  be 
no  doubt  whatever  of  the  defendants'  liability;  they  were  certainly 
transporting  it  in  the  character  of  carriers.  On  their  arrival  at  the 
port  of  destination  and  landing  the  flour  there,  this  character  ceased 
and  the  duty  of  factor  commenced.  When  the  flour  was  sold,  and 
the  specific  money,  the  proceeds  of  sale,  separated  from  other  moneys 

ter  who  in  a  foreign  port  advertises  that  he  is  ready  to  enter  into  charters. 
The  shipowner  or  master  has  a  right  to  consider  the  credit  and  responsibility 
of  the  proposed  charterer,  and  to  reject  his  proposal  if  it  be  thought  expe- 
dient. One  who  puts  up  his  ship  as  a  general  ship  does,  by  so  doing,  by  the 
ordinary  understanding  of  shipowners  and  merchants,  hold  himself  out  as 
ready  to  carry  all  reasonable  goods  brought  to  him.  And  so  does  a  ship- 
owner who  runs  a  line  of  ships  from  ports  to  ports,  habitually  carrying  all 
goods  brought  to  him." 

In  Steele  v.  McTyer,  31  Ala.  667,  674,  70  Am.  Dec.  516  (l'8.58).  there  was  evi- 
dence that  the  flatboats  in  which  cotton  was  carried  down  the  river  to  market 
were  broken  up  for  lumber  at  the  end  of  a  single  trip.  Walker.  J.,  said:  "If 
the  appellants  built  or  procured  a  flatboat,  with  which  to  carry  cotton  down 
the  Cahaba  river  and  thence  to  Mobile,  though  only  for  a  single  trip,  and 
held  themselves  out  as  reiidy  and  willing  to  carry  cotton  on  their  boat  for  the 
people  generally  who  wished  to  send  their  cotton  to  Mobile,  then  they  would 
be  common  carriers.  *  *  *  if  the  appellants,  having  engagetl  a  part  of 
the  loading  for  the  boat,  held  themselves  out  as  ready  to  carry  for  any  per- 
son or  persons  to  the  extent  of  the  remaining  capacity  of  the  boat,  then  they 
would  be  liable  as  common  carriers  to  such  persons  as  availed  themselves  of 
such  offer  of  their  services  to  the  public  generally  as  carriers.  These  ques- 
tions, under  the  proof,  should  have  been  left  to  the  jury." 

5  The  statement  of  facts  has  been  rewritten,  and  part  of  the  opinion  omitted. 


40  INTRODUCTORY  TOPICS.  (Part  1 

in  the  defendants'  hands  and  set  apart  for  the  plaintiffs,  was  on  its 
return  to  them  by  the  same  boat,  the  character  of  carrier  reattached. 
The  return  of  the  proceeds  by  the  same  vessel  is  within  the  scope  of 
the  receipt  and  of  the  usage  of  trade  as  proved,  and  the  freight  paid 
may  be  deemed  to  liave  been  fixed  with  a  view  to  the  whole  course  of 
the  trade,  embracing  a  reward  for  all  the  duties  of  transportation,  sale 
and  return. 

If  the  defendants,  instead  of  bringing  the  money  home  in  their  own 
vessel,  had  sent  it  on  freight  by  another,  there  would  have  been  ta 
the  plaintiffs  the  responsibility  of  a  carrier,  and  there  ought  not  to 
be  less  if  they  chose  to  bring  it  themselves.  If  they  had  mixed  the 
money  up  with  their  own,  they  would  have  no  excuse  for  nonpayment. 
The  defendants  can  be  relieved  from  responsibility  only  by  holding 
that  the  character  of  carrier  never  existed  between  these  parties  at 
all,  or  that,  if  it  existed  on  the  descending  voyage,  it  ceased  at  its 
termination,  and  that  of  factor  began  and  continued  during  the  as- 
cending voyage.  But  if  the  defendants  bring  back  in  the  same  ves- 
sel other  property,  the  proceeds  of  the  shipment,  whether  specific 
money  or  goods,  they  do  so  as  carriers,  and  not  merely  as  factors. 
See  Story  on  Bailm.  350. 

In  the  cases  of  Kemp  v.  Coughtry,  11  Johns,  (N.  Y.)  107,  and 
Emery  v.  Hersey,  4  Greenl.  (Me.)  407,  16  Am.  Dec.  268,  the  points 
involved  in  the  present  case  were  discussed,  and  received  the  same 
determination. 

Judgment  affirmed. 


HONEYMAN  v.  OREGON  &  C.  R.  CO. 
(Supreme  Court  of  Oregon,  1886.     13  Or.  352,  10  Pac.  G28,  57  Am.  Rep.  20.) 

Lord,  J.®  This  is  an  action  brought  by  the  plaintiff  against  the  de- 
fendant as  a  common  carrier  to  recover  damages  for  the  alleged  kill- 
ing of  a  dog  delivered  to  the  defendant  to  be  transported  by  its  rail- 
way from  Portland  to  North  Yamhill.  *  *  *  Issue  being  taken 
by  the  reply,  a  jury  was  impaneled  and  sworn,  and,  after  hearing  the 
evidence  of  the  plaintiff,  the  defendant  moved  the  court  for  a  non- 
suit upon  the  ground  that  the  plaintiff  had  failed  to  prove  a  cause 
sufficient  to  be  submitted  to  the  jury.  The  motion  for  nonsuit  was 
allowed,  and  judgment  was  rendered  against  the  plaintiff,  from  which 
this  appeal  was  taken.     *     *     * 

The  evidence  submitted  and  included  in  the  bill  of  exceptions  does 
not  prove  the  duty  or  undertaking  as  alleged.  The  facts  disclose  that 
the  defendant  did  not  hold  itself  out  as  a  common  carrier  of  dogs,  or 
assume  their  transportation  in  that  character,  but  that  the  defendant 
expressly  refused  to  accept  hire  and  furnish  tickets  for  their  trans- 

«  Parts  of  the  opinion  are  omitted. 


Ch.  4)  WHAT   IS   A    COMMON    CARRIER,  41 

portation.  The  evidence  shows  that  when  the  party  having  in  charge 
the  dogs  applied  to  the  ticket  agent  of  the  defendant  for  transporta- 
tion for  himself  and  dogs  the  agent  refused  tickets  for  the  dogs, 
and  referred  him  to  the  baggage  master,  who  told  him,  "You  know 
the  rules  about  dogs;"  but,  as  an  accommodation,  consented  to  take 
the  dogs  in  his  car,  and  promised  to  look  after  them,  for  which  he 
received  two  dollars.  These  circumstances  do  not  show  that  it  was 
the  business  of  the  defendant  to  carry  dogs,  or  to  receive  pay  for  their 
transportation,  but  that,  as  a  matter  of  accommodation  to  a  passenger, 
it  permitted  the  baggage  master,  after  the  party  was  notified  of  the 
rules,  to  carry  them  in  his  car,  and  to  accept  pay  for  his  care  of  them. 

It  is  true,  as  Mr.  Justice  Bradley  said :  "A  common  carrier  may, 
undoubtedly,  become  a  private  carrier,  or  a  bailee  for  hire,  when,  as 
a  matter  of  accommodation,  or  special  engagement,  he  undertakes  to 
carry  something  which  it  is  not  his  business  to  carry."  Railroad  Co. 
V.  Lockwood,  17  Wall.  357  [post,  pp.  445,  446],  Even  in  this  view,  if 
the  arrangement,  under  the  circumstances,  made  with  the  baggage  mas- 
ter, may  be  construed  to  have  any  binding  effect  upon  the  defendant, 
the  defendant  can  only  be  charged  as  a  private  carrier,  or  bailee,  who 
undertook  to  carry  what  the  facts  show  was  not  its  business  to  carry, 
as  a  matter  of  accommodation,  under  a  special  arrangement.  In  such 
a  case,  as  Isham,  J.,  said,  "the  relation  is  changed  from  a  common 
carrier  to  a  private  carrier,  and  when  such  is  the  effect  of  the  special 
agreement,  they  are  not  liable  as  common  carriers;  neither  can  they 
be  declared  against  as  such.  It  is  possible  there  has  been  a  breach  of 
that  express  contract,  and  the  plaintiff  is,  perhaps,  entitled  to  damages 
for  the  injuries  he  has  sustained;  but  the  action  should  have  been 
brought  on  that  contract,  or  for  a  breach  of  duty  arising  out  of  it, 
and  not  on  the  duty  and  obligation  imposed  on  common  carriers."^ 
Kimball  v.  Rutland  R.  Co.,  26  Vt.  249,  62  Am.  Dec.  567. 

The  complaint  must  set  out  the  facts  of  the  undertaking  or  duty 
as  it  is.  A  plaintiff  cannot  declare  upon  one  undertaking,  duty,  or 
obligation,  and  recover  upon  another.  So  that  in  any  view  of  the 
facts,  as  presented  by  this  record,  there  would  seem  to  be  no  error^ 
and  the  judgment  must  be  affirmed.'^ 

7  See,  also,  Chicago,  etc.,  Co.  v.  Wallace,  66  Fed.  506,  14  O.  C.  A.  257,  30  L. 
R.  A.  161  (1895),  transportation  of  circus. 


PART  II 
THE  CARRIER'S  UNDERTAKING 


CHAPTER  I 
THE  CONDUCT  OF  TRANSPORTATION 


SECTION  1.— DISPATCH 


TAYLOR  V.  GREAT  NORTHERN  RY.  CO. 

(Court  of  Common  Pleas,  1866.     L.  R.  1  C.  P.  385.) 

Appeal  from  the  county  court  of  Lincolnshire.  The  action  was 
brought  to  recover  the  sum,  amongst  others,  of  i4  16s.  6d.,  for  damage 
sustained  by  the  plaintiff  in  consequence  of  a  delay  in  the  delivery  of 
three  hampers  of  poultry,  which  he  had  sent  by  the  defendants'  rail- 
way for  the  early  London  market.  There  was  no  special  contract 
made  by  the  defendants  to  deliver  the  goods  in  time  for  any  particu- 
lar market.  The  delay  was  wholly  occasioned  by  an  accident  which 
occurred  on  the  defendants'  line  between  Hitchin  and  London,  to  a 
train  of  the  Midland  Railway  Company,  who  have  running  powers 
over  that  portion  of  the  defendants'  line.  The  accident  resulted  sole- 
ly from  the  negligence  of  the  servants  of  the  Midland  Railway  Com- 
pany. The  county  court  judge  decided  in  favor  of  the  plaintiff  on  the 
ground  that  as  the  Midland  Railway  Company  used  the  said  railway 
by  the  permission  of  the  defendants,  the  latter  were  responsible  for 
delay  caused  by  the  negligence  of  the  servants  of  the  former  com- 
pany, and,  therefore,  that  the  delivery  in  this  case  was  not  within  a 
reasonable  time.    The  defendants  having  appealed  from  this  decision, 

Erle,  C.  J.  I  am  of  opinion  that  our  judgment  should  be  for  the 
defendants.  I  think  a  common  carrier's  duty  to  deliver  safely  has 
nothing  to  do  with  the  time  of  delivery;  that  is  a  matter  of  contract, 
and  when,  as  in  the  present  case,  there  is  no  express  contract  there 
is  an  implied  contract  to  deliver  within  a  reasonable  time,  and  that 
I  take  to  mean  a  time  within  which  the  carrier  can  deliver,  using  all 
reasonable   exertions.     The  ground   upon   which   the   decision   went 

(42) 


Ch.    1)  THE   CONDUCT   OF   TRANSPORTATION.  43 

against  the  defendants  was  that,  as  the  Alidland  Railway  Company 
used  the  Great  Northern  hne  by  the  defendants'  permission,  the  de- 
fendants were  responsible  for  a  delay  caused  by  the  Midland  Com- 
pany on  their  Great  Northern  line.  But  in  so  deciding  I  think  the 
county  court  judge  took  an  erroneous  view  of  the  relations  between 
the  two  companies.  The  legislature  have  declared  by  many  acts  that 
it  is  for  the  public  advantage  that  railway  companies  should  have  run- 
ning powers  over  each  other's  lines,  and  it  has  specially  declared  it  to 
be  so  in  the  case  of  the  present  agreement,  which  is  confirmed  by  23 
Vict.  c.  67.  The  Midland  Railway  Company,  therefore,  were  not 
merely  using  the  line  by  the  defendants'  permission  but  were  exer- 
cising a  statutory  right,  and  the  defendants  were  not  responsible  for 
their  acts. 

Byi.es,  J.  I  am  of  the  same  opinion.  The  first  duty  of  a  common 
carrier  is  to  carry  the  goods  safely,  and  the  second  to  deliver  them, 
and  it  would  be  very  hard  to  oblige  a  carrier,  in  case  of  any  obstruc- 
tion, to  risk  the  safety  of  the  goods  in  order  to  prevent  delay.  His 
duty  is  to  deliver  the  goods  within  a  reasonable  time,  which  is  a  term 
implied  by  law  in  the  contract  to  deliver ;  as  Tindal,  C.  J.,  puts  it,  when 
he  says,  "the  duty  to  deliver  within  a  reasonable  time  being  merely  a 
term  ingrafted  by  legal  application  upon  a  promise  or  duty  to  deliver 
generally."    Raphael  v.  Pickford,  5  M.  &  G.,  at  page  558. 

My  Brother  Hayes  treats  ordinary  and  reasonable  time  as  meaning 
the  same  thing,  but  I  think  reasonable  time  means  a  reasonable  time 
looking  at  all  the  circumstances  of  the  case.  The  delay  in  this  case 
was  an  accident,  as  far  as  the  defendants  were  concerned,  entirely 
beyond  their  control,  and  therefore  I  think  they  are  not  liable. 

Judgment  for  the  defendants.^ 


THE  ELIZA. 

(District  Court,  D.  Maine,  1847.    2  Ware,  318,  Fed.  Cas.  No.  4,348.) 

This  was  a  libel  filed  against  the  schooner  Eliza,  for  the  breach  of 
d  parol  contract  for  the  transportation  of  a  quantity  of  lumber  from 
the  port  of  Saco  to  New  York.  The  libel  was  filed  on  the  4th  of  Feb- 
ruary, and  the  contract  was  entered  into  on  the  last  day  of  November. 
or  the  first  of  December.  The  cargo  was  put  on  board,  December  1st, 
while  the  schooner  lay  at  the  upper  ferry,  and  she  then  dropped  down 
to  the  lower  ferry  to  avoid  being  detained  by  the  ice,  which  began  to 
be  made  in  the  river.  She  lay  there,  without  proceeding  on  her  voy- 
age, to  the  time  of  the  filing  of  the  libel,  and  in  fact  continues  there  to 

1  Keating  and  Montague  Smith,  J.I.,  delivered  concurring  opinions. 

Ace.  Conger  v.  Hudson  11.  Co..  G  Duer  (N.  Y.)  37.5  (18.j7),  post.  p.  374; 
Viclvsburg.  etc..  Co.  v.  Ragsdale,  4G  Miss.  4.=>8  (1872) ;  Brown,  J.,  in  Tlie  Cale- 
donia, 157  U.  S.  124,  140-144,  15  Sup.  Ct.  537,  39  L.  Ed.  644  (1895)  and  cases 
cited. 


44  THE   carrier's   UNDERTAKING.  (Part  2 

this  time,  with  the  carg-o  on  board.  The  schooner,  though  a  small  ves- 
sel, was  proved  to  be  in  a  good  condition  and  every  way  fit  for  the 
voyage,  though  at  that  season  of  the  year  the  voyage  is  one  of  con- 
siderable danger.  She  is  now  ready  for  sea  and  is  said  to  be  about 
sailing  on  the  voyage.  The  libel  was  for  damage  for  not  proceeding 
on  the  voyage  within  a  reasonable  time. 

Ware,  District  Judge.-  The  fact,  that  a  contract  of  affreightment 
w^as  made  and  the  cargo  taken  on  board  in  pursuance  of  the  contract 
is  admitted.  The  controversy  is,  what  were  the  terms  of  the  contract? 
The  libellant  contends  that  it  was  a  contract  in  the  ordinary  and  usual 
terms  of  such  engagements,  to  receive  the  cargo  on  board  and  to  pro- 
ceed on  the  voyage  without  unnecessary  delay.  The  owners  allege 
that  it  was  conditional;  that  it  was  to  receive  the  cargo  on  board 
where  the  schooner  lay,  and  drop  down  to  the  lower  ferry,  and  then 
to  proceed  on  the  voyage  as  soon  as  a  master  and  crew  could  be  ob- 
tained to  navigate  her;  the  vessel  being  small,  and  the  voyage  at 
that  season  being  hazardous,  that  their  engagement  to  perform  the 
voyage  was  made  subject  to  the  condition  that  a  master  and  crew 
could  be  obtained,  and  that  they  have  made  all  reasonable  efforts  to- 
procure  a  master  and  have  not  been  able  to  succeed.  It  is  proved  that 
they  applied  to  several  masters  to  take  charge  of  the  vessel,  who  all, 
for  various  reasons,  declined;  but  not  particularly  on  account  of  the 
dangers  of  the  voyage.     *     *     * 

The  conclusion  to  which  I  am  brought  by  the  evidence  is,  that  the 
contract  was  not  made  dependent  on  a  condition  that  a  master  and 
crew  could  be  found,  but  that  it  w^as,  as  charged  in  the  libel,  in  the  or- 
dinary form,  that  the  vessel  should  proceed  on  her  voyage  without  un- 
necessary delay.  It  is  true  that  every  engagement  to  perform  a  future 
act  is,  in  one  sense,  conditional.  If  it  becomes  impossible  by  any  event 
not  imputable  to  the  party  who  is  bound  to  perform  it,  unless  he  as- 
sumes the  risk  of  all  contingencies,  he  is  excused.  The  law  com- 
pels no  one  to  impossibilities.  Poth.  Oblig.  148 ;  6  TouU.  227.  Those 
events  called  accidents  of  major  force,  or  fortuitous  events,  or  the  acts 
of  God,  always  constitute  an  implied  condition,  in  every  engagement, 
for  a  future  act.  If  the  vessel  had  been  burnt  by  an  accidental  fire,  or 
destroyed  by  a  tempest,  this  would  have  been  a  valid  excuse.  But  the 
difficulty  of  obtaining  a  master  and  crew  is  not  one  of  those  contin- 
gencies implied  in  a  contract  of  affreightment,  to  excuse  a  nonperform- 
ance of  the  contract.  It  is  not  unusual  for  an  owner  to  engage  a  ves- 
sel for  a  voyage  before  he  has  engaged  a  master,  and  a  crew  is  rarely 
engaged  until  the  voyage  is  determined  upon  and  the  vessel  nearly 
ready  for  sea.  These  contingencies  the  owner  takes  on  himself.  I 
do  not  mean  to  say  that  the  difficulty  of  obtaining  a  master  and  crew  to 
navigate  a  vessel  may  not  be  such  as  to  amount  to  an  impossibility, 
and  thus  come  within  the  class  of  fortuitous  events  that  will  excuse- 

2  Part  of  the  opinion  is  omitted. 


■Ch,    1)  THE    CONDCCT   OF   TRANSPORTATION.  45 

a  party  from  performing  his  engagement.  But  the  circumstances 
must  be  very  extraordinary  to  amount  to  a  justification.  It  is  proved 
by  the  testimony,  that  the  owner  made  efforts  to  obtain  a  master. 
Five  different  persons  were  applied  to  without  success.  But  others 
might  have  been  found,  if  not  in  Saco,  in  some  of  the  neighboring 
towns.  And  I  do  not  think  that  any  such  extreme  case  is  proved,  as 
will  excuse  the  owner  from  his  engagement,  under  the  notion  that  it 
has  become  impossible  by  a  fortuitous  event  or  an  accident  of  major 
force. 

Decree  for  libelant.' 


ANDERSON  v.  OWNERS  OF  THE  SAN  ROMAN. 

(Privy  Council,  1873.     L.  R.  5  P.  C.  301.) 

Mellish,  L.  J.  The  only  question  which  their  Lordships  have  to  de- 
termine in  this  case  is  whether  a  German  vessel  called  the  San  Roman 
ivas  justified  in  staying  at  Valparaiso  from  the  23d  of  September, 
1870,  up  to  the  23d  of  December  in  the  same  year,  on  account  of  the 
alleged  risk  of  capture  in  consequence  of  the  war  which  then  existed 
between  France  and  Germany,  this  being  a  claim  of  the  English  char- 
terers to  recover  compensation  on  account  of  what  they  allege  to  be 
an  unreasonable  delay.  The  learned  judge  in  the  court  below  has 
laid  down  that  "an  apprehension  of  capture  founded  on  circumstances 
calculated  to  affect  the  mind  of  a  master  of  ordinary  courage,  judg- 
ment, and  experience,  would  justify  delay,"  and  their  Lordships  are 
of  opinion  that  that  is  a  correct  statement  of  the  law  of  England.  It 
has  been  admitted  in  the  argument  of  the  appellants  that  it  is  unnec- 
essary to  determine  whether  this  case  ought  to  be  decided  according 
to  the  law  of  England  or  according  to  the  law  of  Germany,  because 
there  is  no  practical  distinction  on  the  subject  in  the  law  of  the  two 
countries. 

Therefore  the  question  their  Lordships  have  to  determine  is  entirely 
a  question  of  fact,  namely,  whether  the  German  master  had  during 
that  time  such  an  apprehension  of  capture  founded  on  circumstances 
calculated  to  aft"ect  his  mind — he  being  a  man  of  ordinary  courage, 
judgment,  and  experience — as  would  justify  delay;  and  their  Lord- 
ships agree  with  the  learned  judge  in  the  court  below  that  there  was 
a  sufficient  risk  of  capture  to  justify  this  delay. 

This  is  not  a  case  where  the  master  has  refused  to  perform  the 

3  "Knowing  the  difficulty  of  transportation,  being  informed  of  a  then  exist- 
ing press  of  business,  aware  of  the  probability  of  an'  inability  to  promptly 
handle  and  transport  freight,  a  carrier  cannot  accept  and  receipt  for  freight 
for  transportation,  and  then  plead  in  excuse  and  extenuation  of  its  delay  a 
condition  of  affairs  of  which  it  was  at  the  time  advised."  Truly,  J.,  in  Yazoo 
&  M.  V.  R.  Co.  V.  Blum  Co.,  88  Miss.  380,  40  South.  748.  10  L.  R.  A.  (X.  S.) 
432  (1906).  Ace.  Railroad  Co.  v.  Manufacturing  Co.,  16  Wall.  318,  21  L.  Ed. 
297  (1872). 


46  THE    carrier's   UNDERTAKING.  (Part  2 

contract  at  all.  No  doubt,  if  the  voyage  had  been  abandoned,  then  it 
would  have  been  necessary  to  shew  that  he  had  been  actualh  prevent- 
ed from  performing  it;  but  this  is  merely  a  question  whether  there 
was  a  reasonable  cause  for  delay. 

The  evidence  on  the  subject  really  is  that  it  was  reported  at  Val- 
paraiso, and  generally  known,  that  French  vessels  of  war  were  con- 
tinually, during  the  months,  at  any  rate,  of  September  and  October, 
and  for  a  pa'-t  of  November,  sailing  in  and  out  of  the  harbor  of  \'al- 
paraiso,  Valparaiso  being  the  great  harbor  on  that  coast;  and  if 
French  vessels  intended  to  capture  German  vessels,  they  were  more 
likely  to  find  prizes  coming  out  of  \'alparaiso  than  from  any  other 
harbor  on  the  coast.  There  is  one  particular  ship  that  seems  to  have 
come  in  and  gone  out,  and  in  ten  days  more  to  have  come  in  again. 
It  appears  to  their  Lordships  that  the  German  captain  in  \^alparaiso 
could  come  to  no  other  reasonable  conclusion  than  that  the  principal 
object  of  these  French  war  vessels,  of  which  at  one  time  there  were 
as  many  as  five  in  \'alparaiso,  must  have  been  to  capture  German 
vessels. 

Besides  that,  it  appears  that  the  newspapers  at  Valparaiso  published 
reports,  correct  or  incorrect,  of  captures  that  had  actually  taken  place; 
and,  in  addition  to  that,  it  appears  that  the  master  went  and  consulted 
the  consul  of  his  own  nation,  and  the  consul  advised  him,  in  the 
strongest  language — in  fact,  almost  ordered  him — not  to  go,  and  told 
him  that,  if  he  would  go,  he  must  give  him  a  certificate  that  he  had 
received  due  warning  against  leaving  Valparaiso.  There  were  other 
German  ships  in  that  harbor,  some  loaded  and  some  unloaded,  and 
the  captains  of  all  of  them  came  to  the  conclusion  that  it  would  be 
improper  and  unsafe  to  leave  \"alparaiso  at  that  time. 

It  also  appears  that  the  master  was  far  from  being  a  person  who 
waited  to  the  last  to  leave  when  the  French  vessels  had  for  a  time 
departed,  but  that  he  was  among  the  first  who  went  to  the  consul  and 
required  his  papers  for  the  purpose  of  leaving.  Therefore  there  is 
nothing  to  show  that  he  was  at  all  neglecting  or  wishing  to  violate 
his  duty  towards  the  owners  of  the  cargo.  Their  Lordships  agree 
with  what  was  said  before  in  the  judgment  in  the  case  of  The  Teu- 
tonia,  L.  R.  4  P.  C.  171,'*  that  the  owner  of  an  English  cargo  on  board 
a  foreign  ship  cannot  expect  that  the  foreign  master  of  the  foreign 
ship  will  take  greater  precautions  with  respect  to  his  goods,  or  will 

4  In  this  case  Lord  Justice  Mellish  said:  "  *  *  *  If  the  cargo  had  beeu 
a  Prussian  cargo,  it  would  have  been  exposed  to  the  same  danger  as  the 
ship  from  entering  the  port  at  Dunkirk,  and  it  appears  to  their  Lordships 
that,  when  an  English  merchant  ships  goods  on  board  a  foreign  ship,  he  can- 
not expect  that  the  master  will  act  in  any  respect  differently  towards  his 
cargo  than  he  would  towards  a  cargo  shipped  by  one  of  his  own  country,  and 
that  it  cannot  be  contended  that  the  master  is  deprived  of  the  right  of  taking 
reasonable  and  prudent  steps  for  the  preservation  of  his  ship,  because,  from 
the  accident  of  the  cargo  not  belonging  to  his  own  nation,  the  cargo  is  not 
exposed  to  the  same  danger  as  the  ship." 


Ch.    1)  THE   CONDUCT   OF   TRANSPORTATION.  47 

run  greater  risk  in  their  defense,  than  he  would  with  respect  to  goods 
of  his  own  nation.  If  their  Lordships  were  to  look  upon  this  case  as  a 
case  in  which  the  cargo  was  German  as  well  as  the  ship,  or  a  case 
in  which  both  ship  and  cargo  belonged  to  the  same  person,  and  then 
were  to  ask  the  question,  Would  a  man  of  reasonable  prudence,  under 
such  circumstances,  have  set  sail  or  waited?  it  appears  to  their  Lord- 
ships most  clearly  that  a  man  of  reasonable  prudence  would  have 
waited. 

Then,  when  it  is  remembered  that  the  owner  of  the  cargo  is  an 
Englishman,  it  must  be  a  matter  of  mere  guess  whether  the  cargo 
would  have  arrived  in  England  sooner  than  it  did  if  it  had  started 
before,  because,  in  the  first  place,  there  would  be  great  risk  of  cap- 
ture; and  secondly,  whether  the  vessel  were  captured  or  not,  the 
German  ship,  during  the  whole  of  that  voyage  from  A^alparaiso  to 
Cork  or  Falmouth,  and  then  from  Cork  or  Falmouth  to  its  port  of  dis- 
charge, would  have  been  justified  in  taking  reasonable  precautions 
to  avoid  French  vessels.  Then,  if  the  ship  were  captured,  nobody 
could  tell  how  long  it  would  have  been  kept  before  it  was  sent  to 
France  for  the  purpose  of  being  condemned,  or  how  long  it  would 
have  taken  before  the  cargo  arrived.  Therefore  it  is  by  no  means  cer- 
tain that  if  the  master  had  gone  to  sea  before  he  did  the  cargo  would 
have  arrived  any  sooner. 

Then,  with  regard  to  the  last  part  of  the  delay — that  after  the  13th 
of  November — nobody  could  tell  for  a  time  whether  the  last  French 
vessel  would  come  back,  or  whether  it  was  cruising  about.  The  delay 
between  the  11th  and  the  23d  of  December  is  too  short  a  delay  to  be 
a  matter  of  any  importance,  yet  that  appears  to  be  accounted  for  by 
his  being  engaged  in  procuring  money  to  pay  his  expenses. 

On  the  whole,  their  Lordships  are  of  opinion  that  the  judgment  of 
the  court  below  is  perfectly  right,  and  they  will  humbly  advise  Her 
iMajesty  that  this  appeal  ought  to  be  dismissed  with  costs. 


SECTION  2.— CONTINUITY 


LOUISVILLE  &  N.  R.  CO.  v.  KLY^IAN. 

(Supreme  Court  of  Tennessee,  1902.    108  Teiin.  304,  67  S.  AY.  472.  56  L.  R.  A. 
769,  91  Am.  St.  Rep.  755.) 

Caldwell,  J.^  The  line  of  the  Henderson  Division  of  the  Louis- 
ville &  Nashville  Railroad  Company,  running  north  and  south,  crosses 
the  line  of  its  Memphis  Division,  which  runs  east  and  west,  at  Gu- 
thrie, Ky.  Russellville,  Ky.,  is  on  the  former  line,  east  of  the  inter- 
section;  and  Nashville,  Tenn.,  is  on  the  latter  line,  south  of  the  inter- 

6  Parts  of  the  opinion  have  been  omitted. 


48  THE  carrier's  undertaking.  (Part  2 

section.  Passengers  going  from  one  of  these  points  to  the  other  must 
cliange  cars  and  have  some  delay  at  Guthrie,  the  place  of  intersection. 
August  10,  1898,  the  plaintiff,  Solomon  Klyman,  took  passage  at  Rus- 
sellville  for  Nashville;  and,  while  awaiting  the  Nashville  bound  train 
at  Guthrie,  he  received  a  message  calling  him  in  the  opposite  direc- 
tion, to  ]\Iadisonville,  Ky.,  whence  he  went  to  Louisville,  Ky.,  and 
thence  to  Russellville,  and  on  to  Guthrie  again  by  the  same  route  as 
before.  After  this,  on  August  29th  of  same  year,  he  boarded  the 
train  at  Guthrie  and  resumed  his  journey  to  Nashville.  The  con- 
ductor challenged  his  ticket,  and,  upon  his  refusal  to  pay  fare,  stopped 
the  train,  and  was  in  the  act  of  forcibly  ejecting  him,  wdien  a  fellow 
passenger  paid  his  fare  for  him,  and  he  was  carried  safely  to  his  desti- 
nation. A  few  moments  after  his  fare  was  paid  he  exhibited  a  large 
amount  of  money,  and  repaid  the  gentleman  who  had  kindly  ad- 
vanced the  fare  for  him.  This  suit  was  brought  to  recover  damages 
for  the  attempted  ejection;  verdict  and  judgment  were  rendered  for 
^150  in  the  plaintiff's   favor,  and  the  defendant  appealed  in  error. 

The  trial  judge  took  the  plaintiff's  view,  and  charged  the  jury  as 
follows :  "That  if  the  plaintiff  purchased  a  ticket  at  Guthrie  for  Nash- 
ville, and  paid  full  fare  for  it,  or  if  he  purchased  it  at  Russellville  for 
Nashville,  via  Guthrie,  as  the  road  ran,  at  the  full  fare,  that  he  was 
entitled  to  transportation  from  Russellville  or  from  Guthrie  to  Nash- 
ville upon  the  same,  no  matter  when  presented;  and  if  the  defendant 
company,  through  its  conductor,  refused  to  accept  the  same  for  pas- 
sage from  Guthrie  to  Nashville  when  offered  and  presented  by  plaintiff 
and  the  conductor  thereupon  proceeded  to  eject,  or  attempted  to  eject, 
the  plaintiff  from  the  train,  such  action  on  his  part  was  contrary  to 
law,  and  that  defendant  would  be  liable  for  such." 

This  instruction,  when  applied,  as  it  must  be,  to  the  facts  and  con- 
tentions heretofore  recited,  is  erroneous  in  its  alternative  supposition. 
The  ticket  was  not  good  for  transportation  to  Nashville  when  present- 
ed, if  issued  in  ordinary  form  at  Russellville,  and  used  to  Guthrie  19 
days  previously.  Such  a  ticket,  if  issued,  was  good  only  for  a  con- 
tinuous passage  from  Russellville  to  Nashville  by  such  connection  as 
was  made  by  the  company's  trains  at  Guthrie;  and  the  plaintiff, 
having  elected,  if  he  did,  to  begin  his  journey  on  the  day  of  issuance, 
was  legally  bound  to  finish  it  by  the  first  suitable  train  from  Guthrie 
after  his  arrival  there.  The  contract  indicated  by  such  a  ticket  was, 
in  the  absence  of  an  agreement  to  the  contrary,  an  entirety;  and, 
when  performance  was  once  commenced,  both  passenger  and  carrier 
were  legally  obliged  to  continue  it  until  completed.  The  contract 
operated  on  both  alike.  It  gave  the  passenger  no  more  power  to 
break  his  journey  into  parts  against  the  company's  will  than  it  gave 
the  company  to  do  the  same  thing  against  his  will.  It  gave  neither 
the  right  of  severance  and  piecemeal  performance  without  the  consent 
of  the  other,  and  no  consent  is  shown  or  claimed. 


Ch.    1)  THE    CONDUCT   OF   TRANSPORTATION.  49 

The  purchase  of  a  full-rate,  through  ticket  from  Russellville  to 
Nashville,  if  made  by  the  plaintiff,  entitled  him,  under  the  authority 
of  Railroad  Co.  v.  Turner,  100  Tenn.  214,  47  S.  W.  223,  to  elect  when 
he  would  begin  his  journey ;  but  it  did  not  entitle  him,  under  that  or 
any  other  authority  of  which  we  are  aware,  to  subdivide  his  journey 
at  will,  or,  when  started,  to  go  otherwise  than  continuously  from  ini- 
tial point  to  ultimate  destination.  The  law  impHes  the  right  of  an 
election  between  times  for  embarkation  from  the  very  sale  of  such  a 
ticket;  and  it  likewise,  for  a  similar  reason,  implies  the  duty  of  con- 
tinuous passage,  from  the  very  fact  of  its  commencement.  As  the 
sale  of  such  a  ticket,  nothing  else  being  said,  affords  an  inference  that 
the  purchaser  may  start  when  he  pleases,  so  his  starting,  without  an 
agreement  to  the  contrary,  affords  an  inference  that  he  will  go  direct- 
ly to  the  end  of  his  journey.  The  company  must  receive  him  upon  its 
regular  train  whenever  he  sees  fit  to  start,  and,  having  started,  he 
must  make  a  continuous  passage;  no  agreement  to  the  contrary  hav- 
ing been  made  in  either  instance.  These  rights  and  duties  lie  at  the 
foundation  of  the  contract,  and  are  reciprocal. 

Only  a  few  of  the  many  authorities  upon  the  subject  will  be  cited. 
*  =!<  *  It  is  due  to  say  that  we  are  not  dealing  in  this  case  with  a 
coupon  ticket,  in  respect  of  which,  as  a  whole,  the  rule  is  different; 
allowing,  as  it  does,  as  many  breaches  in  the  journey,  or  as  many 
stop-overs,  as  there  are  coupons.  Of  such  a  ticket,  each  coupon  is 
said  to  stand  as  a  separate  ticket  between  its  own  initial  and  ultimate 
points ;  and  passage  upon  any  particular  coupon,  when  begun,  is  re- 
quired to  continue  to  its  end,  unless  otherwise  agreed.  The  authori- 
ties upon  the  use  of  the  coupon  ticket  illustrate  and  re-enforce  the 
doctrine  herein  applied  to  the  case  in  hand.     *     *     * 

Reverse  and  remand. ° 

6  Ace.  Chenev  v.  B.  &  M.  Co.,  11  Mete.  (Mass.)  121,  4.5  Am.  Dec.  190  (1846) ; 
State  V.  Overton.  24  X.  J.  Law,  4.3.J,  61  Am.  Dec.  671  (1854);  Cleveland,  etc.. 
R.  Co.  V.  Bartram,  11  Ohio  St.  457  (1860) ;  Stone  v.  Chicago,  etc.,  R.  Co.,  47 
Iowa.  82,  29  Am.  Rep.  4.58  (1877) ;  Pa.  R.  Co.  v.  Parry,  55  N.  J.  Law,  551,  27 
Atl.  914,  22  L.  R.  A.  251,  39  Am.  St.  Rep.  654  (1893).  changing,  en  route,  to 
faster  train;  Ash  ton  v.  Lancashire,  etc.,  Ry.  Co.,  [1904]  2  K.  B.  313;  Bastable 
V.  Metcalfe,  [1906]  2  K.  B.  288.  A  passenger  who  can  get  no  seat  may,  it 
seems,  leave  the  train  at  the  next  station  without  paying  fare,  but  if  he  gets 
a  seat  at  such  station  he  is  not  entitled  to  ride  further,  except  on  paying  fare 
from  the  starting  point.  Davis  v.  Kan.  City,  etc.,  Ry.  Co..  .53  Mo.  317,  14  Am. 
Rep.  457  (1873).  A  passenger  ejected  for  not  paying  fare  may  not  resume  his 
journey  on  paying  fare  for  the  rest  of  the  way.  Pennington  v.  Phil.,  etc.,  R. 
Co.,  62  Md.  95  (1883).  Compare  Choctaw,  O.  &  G.  R.  Co.  v.  Hill.  110  Tenn. 
396,  75  S.  W.  9(>3  (1903),  where  employe,  ordered  to  leave  train  for  disobej-ing 
orders,  was  held  entitled  to  travel  as  passenger  on  paying  fare  for  the  rest 
of  the  way.  And  see  cases  collected  in  28  L.  R.  A.  773,  note ;  Beale  &  Wyman, 
R.  R.  Rate  Reg.  §§  671-680. 

Where  a  through  fare  is  greater  than  the  sum  of  the  local  fares,  it  has 
been  held  that  a  common  carrier  is  not  obliged  to  receive  separate  local  fares 
in  payment  for  through  transportation.  Gt.  Xo.  Rv.  Co.  v.  Palmer,  [1895]  1 
Q.  B.  862;  London  &  N.  W.  Ry.  Co.  v.  Hinchcliffe.  [1903]  2  K.  B.  32.  Contra, 
Kan.  City  So.  Ry.  Co.  v.  Brooks,  84  Ark.  233,  105  S.  W.  93  (1907). 
Green  Cabr. — 4 


50  THE   carrier's   UNDERTAKING.  (Part  2 


LASKER  V.  THIRD  AVE.  R.  CO. 

(City  Court  of  New  York.  General  Term,  1899.     27  Misc.  Rep.  824, 
57  N.  T.  Supp.  395.) 

McCarthy,  J.  The  plaintiff  voluntarily  took  passage  in  one  of  the 
open  cars  of  the  defendant.  Subsequently,  because  of  a  cold,  and  of 
the  sudden  change  in  the  weather,  the  plaintiff  left  said  first  car,  and 
boarded  a  closed  car — one  immediately  in  the  rear  of  the  same,  and 
attached  thereto.  The  conductor  of  the  latter  car  then  demanded 
from  plaintiff  his  fare,  which  plaintiff  refused,  for  the  reason  that 
he  had  already  paid  a  fare  to  the  conductor  in  charge  of  the  first,  or 
open,  car.  Because  of  this  refusal  he  was  ejected  from  the  last  car; 
hence  this  action. 

The  demand  of  the  conductor  in  charge  of  the  closed  car  for  plain- 
tiff's fare  was  just  and  reasonable.  The  plaintiff  had  voluntarily 
chosen  to  take  passage  in  the  open  car.  If,  for  reasons  satisfactory 
to  himself,  and  for  his  own  interest,  he  subsequently  wished  to  take 
passage  in  one  of  defendant's  closed  cars,  he  thus  made  himself  a 
new  passenger,  and  defendant  has  the  right  to  require  him  to  pay  the 
usual  fare.  The  refusal  of  plaintiff  to  pay  said  fare  entitled  de- 
fendant's servant  to  use  necessary  physical  force  to  eject  plaintiff  from 
the  car.     In  our  judgment  no  unnecessary  force  or  violence  was  used. 

Finding  there  was  no  error,  judgment  is  affirmed,  with  costs.'^         / 


SECTION  3.— ROUTE 


CONSULATE  OF  THE  SEA,  c.  56:  "Further  the  managing 
owner  of  the  ship  or  vessel  cannot  and  ought  not  to  enter  into  a  port 
without  the  assent  of  the  merchant,  and  if  he  has  entered  when  the 
merchant  is  afraid  of  something,  all  the  damage  which  the  merchant 
incurs  the  ship  is  bound  to  make  good,  and  the  ship's  clerk  ought  to 
make  an  entry  of  it,  whether  or  not  the  ship  be  moored  to  the  shore. 
But  nevertheless,  if  the  managing  owner  of  the  ship  is  in  want  of 
any  necessaries,  he  ought  to  tell  the  merchant  that  he  cannot  navigate 
the  vessel  because  he  requires  new  apparel  or  to  repair  or  to  careen 
his  vessel,  and  thereupon  the  merchant  ought  to  enter  the  port,  pro- 
vided that  the  mate  and  mariners  affirm  their  knowledge  of  the  fact 
by  their  oaths.     *     *     *  "  ® 

7  Compare  Birmingham,  etc.,  Co.  v.  McDonough,  post,  p.  553. 

8  The  Consulate  of  the  Sea  "was  probably  a  compilation  made  by  private 
persons ;  but  whoever  may  have  been  the  authors  of  it,  and  at  whatever  pre- 
cise point  of  time  the  Consolato  may  have  been  compiled,  it  is  certain  that 
it  became  the  common  law  of  all  the  commercial  powers  of  Europe.     The 


Ch.    1)  THE    CONDUCT   OF   TRANSPORTATION.  51 

LAWS  OF  WISBY,  art.  LIU:  "U  a  ship  freighted  for  one  port, 
enters  another,  the  master,  together  with  two  or  three  of  his  chief 
mariners,  ought  to  clear  themselves  upon  oath,  that  it  was  by  con- 
straint and  necessity  that  they  went  out  of  their  way.     *     *     *  "  ® 


MOLLOY,  DE  JURE  MARITIMO,  bk.  II,  c.  IV,  §  10  (1676): 
"If  the  ship  puts  into  any  other  port  than  what  she  was  freighted  to, 
the  Master  shall  answer  Damage  to  the  Merchant ;  but  if  forced  in  by 
Storm  or  by  Enemy,  or  Pirates,  he  then  must  sail  to  the  Port  condi- 
tioned at  his  own  Costs." 

marine  laws  of  Italy,  Spain.  France,  and  England  -were  greatly  affected  by 
its  influence;  and  it  formed  the  basis  of  subsequent  maritime  ordinances. 
*  *  *  It  is  undoubtedly  the  most  authentic  and  venerable  monument  extant 
of  the  commercial  usages  of  the  Middle  Ages,  and  especially  among  the  peoples 
who  were  concerned  in  the  various  branches  of  the  Mediterranean  trade."  3 
Kent,  Commentaries.  10,  11. 

"It  is  not  too  bold  a  conjecture  to  suppose  from  the  circumstance  that 
explanations  are  for  the  most  part  given  at  the  end  of  each  chapter  of  the 
reasons  for  which  'the  chapter  was  made.'  or  of  the  object  principally  kept  in 
view  when  the  chapter  was  drawn  up,  that  the  'Customs  of  the  Sea,'  in  the 
form  in  which  they  have  come  down  to  us  in  the  Book  of  the  Consulate  of 
1494,  are  a  digest  of  the  constitutions  made  from  time  to  time  on  maritime 
matters  by  the  Prud'hommes  of  the  Sea  at  Barcelona.  Their  true  character  is 
avowed  in  the  opening  words  of  the  first  chapter:  'These  are  the  good  con- 
stitutions and  good  customs  in  matters  of  the  sea  which  the  wise  men  who 
have  navigated  the  world  have  handed  down  to  our  ancestors,  and  which 
make  up  the  book  of  the  Science  of  Good  Customs.'  That  there  were  writ- 
ten 'customs  of  the  sea',  which  the  Consuls  of  the  Sea  were  authorized  to 
observe  at  a  period  long  antecedent  to  the  Barcelonese  ordinance  of  14;i'3,  may 
be  inferred  from  certain  passages  in  the  Valencian  regulations,  which,  as  al- 
ready observed,  were  drawn  up  between  A.  D.  1336  and  A.  D.  1343.  A 
provision  is  found  in  chapter  xli  of  those  regulations  to  this  effect:  'The 
sentences  of  the  consuls  and  the  decisions  of  the  judges  shall  be  rendered  in 
conformity  with  the  written  customs  of  the  sea,  according  as  it  is  declared 
in  the  different  chapters  of  them,  and  in  case  where  the  customs  of  the  sea 
shall  declare  nothing,  according  to  the  counsel  of  the  prud'hommes  of  the 
sea.'  And  it  had  been  already  provided  by  a  previous  diploma  of  Peter  III 
of  Aragon,  by  which  the  consular  jurisdiction  was  first  established  in  Valencia 
in  1283,  that  the  Consuls  of  the  Sea  should  determine  all  contracts  and  dis- 
putes between  'men  of  the  sea'  and  mariners,  according  to  the  custom  of  the 
sea,  as  had  been  customary  at  Barcelona."  Sir  Travers  Twiss,  Black  Book  of 
the  Admiralty,  vol.  II,  p.  Ixv. 

9  "The  opinion  that  the  Sea  Laws,  which  form  the  first  division  of  the  so- 
called  Maritime  Law  of  Wisbuy,  are  the  oldest  Sea  Laws  of  Wisbuy,  and 
that  the  second  and  third  divisions  (articles  40  et  seq.)  of  that  collection  of 
Sea  Laws  are  of  Flemish  and  Dutch  origin  respectively,  which  were  introduced 
at  Wisbuy  and  in  other  ports  of  the  Baltic  in  the  fourteenth  century,  whilst 
the  first  division  had  been  adopted  in  the  thirteenth  century  at  Wisbuy  itself 
in  the  common  assembly  of  the  associated  Shipmasters  and  Merchants  of  Wis- 
buy and  of  Lubec,  is  far  more  reasonable  than  the  popular  opinion."  Sir 
Travers  Twiss,  Black  Book  of  the  Admiralty,  vol.  IV,  p.  Ixxiv. 

"This  general  reception  of  the  Wisbuy  Sea  Laws  can  only  be  attributed  to 
the  fact  that  they  were  regarded  as  bringing  together  in  a  very  trustworthy 
form  the  ancient  usages  and  customs  of  the  merchants  and  mariners  of  the 
Northern  and  of  the  Western  Seas.    Id.  p.  Ixxxvi. 


52  THE  carrier's  undertaking.  (Part  2 

LEDUC  &  CO.  V.  WARD. 

(Court  of  Appeal,  1888.     20  Q.  B.  D.  475.) 

Appeal  by  the  defendants  from  the  judgment  of  Denman,  J.,  at 
the  trial  without  a  jury. 

The  action  was  by  indorsees  of  bill  of  lading  against  shipowners 
for  nondelivery  of  goods,  and  the  facts  were  in  substance  as  follows : 
The  plaintiffs  had  purchased  goods  from  merchants  abroad  to  be  ship- 
ped from  a  foreign  port.  The  payment  of  the  price  was  to  be  made 
in  exchange  for  shipping  documents,  and,  the  price  of  the  goods  hav- 
ing been  paid,  the  bill  of  lading,  signed  by  the  defendants'  captain 
upon  the  shipment  of  the  goods,  had  been  indorsed  to  the  plaintiffs. 
The  ship  was  a  general  ship. 

The  bill  of  lading  as  far  as  material  was  as  follows :  "Shipped  in 
apparent  good  order  and  condition  on  the  steamship  Austria,  now 
lying  in  the  port  of  Fiume,  and  bound  for  Dunkirk,  with  liberty  to 
call  at  any  ports  in  any  order,  and  to  deviate  for  the  purpose  of  saving 
life  or  property;  3,123  bags  of  rape  seed,  being  marked  and  numbered 
as  per  margin,  and  to  be  delivered  in  the  like  good  order  and  condi- 
tion at  the  aforesaid  port  of  Dunkirk  unto  order  or  assigns."  Then 
followed  the  usual  clause  excepting  perils  of  the  sea,  etc. 

The  vessel,  instead  of  proceeding  direct  to  Dunkirk,  sailed  for  Glas- 
gow and  was  lost,  with  her  cargo,  near  Ailsa  Craig,  off  the  mouth 
of  the  Clyde,  by  perils  of  the  sea.^*'     *     *     * 

Gainsford  Bruce,  Q.  C,  and  Lawson  Walton  (Finlay,  Q.  C,  with 
them),  for  the  defendants:  *  *  *  The  liberty  given  to  call  at 
any  ports  in  any  order  is  against  the  notion  that  the  terms  of  the 
bill  of  lading  import  a  contract  for  a  direct  voyage.  It  would  be  very 
absurd  that  the  ship  should  be  able  to  go  to  Gibraltar  and  then  back 
again  to  some  port  near  Fiume,  as  she  undoubtedly  might  under  this 
clause,  and  yet  could  not  go  out  of  her  way  as  far  as  Glasgow.   *  *   * 

[Fry,  L.  J.  On  the  face  of  the  bill  of  lading  no  other  enterprise 
is  shown  but  a'  voyage  from  Fiume  to  Dunkirk.  The  contention  for 
the  defendants  must,  it  would  appear,  go  the  length  of  saying  that  the 
ship  may  go  to  any  port  in  the  world.] 

If  it  be  necessary  to  go  that  length,  that  is  the  natural  meaning  of 
the  words. 

C.  Russell,  Q.  C,  and  Gorell  Barnes,  for  the  plaintiffs:  *  *  * 
The  clause  giving  liberty  to  call  at  any  port  in  any  order  must  be 
construed  as  subject  to  the  limitation  that  they  must  be  ports  within 

10  There  was  evidence  that  the  shippers  kuew  when  they  shipped  the  cargo 
that  the  vessel  was  intended  to  proceed  to  Glasgow,  but  the  court  held  that 
under  the  Bills  of  Lading  Act  such  knowledge  could  not  affect  the  obligation 
of  the  carrier  toward  indorsees  of  the  bills  of  lading.  So  much  of  the  state- 
ment of  facts,  of  the  argument  of  counsel,  and  of  Lord  Esher's  opinion  as  re- 
lates to  this  point  has  been  omitted.  Concurring  opinions  of  Fry  and  of  Lopes, 
L.  JJ.,  have  also  been  omitted. 


Ch.   1)  THE   CONDUCT   OF   TRANSPORTATION.  53 

the  scope  of  the  adventure  on  which  the  ship  by  the  terms  of  the  bill 
of  lading  is  engaged.  It  cannot  be  that  Glasgow,  which,  to  and  fro, 
would  be  somewhere  about  1,200  miles  out  of  the  course  from  Fiume 
to  Dunkirk,  is  within  that  liberty. 

Lord  Esher,  M.  R.  In  this  case  the  plaintiffs,  the  owners  of  goods 
shipped  on  board  the  defendants'  ship,  sue  for  nondelivery  of  the 
goods  at  Dunkirk  in  accordance  with  the  terms  of  the  bill  of  lading. 
The  defense  is  that  the  delivery  of  the  goods  was  prevented  by  perils 
of  the  sea.  To  that  the  plaintiffs  reply  that  the  goods  were  not  lost 
by  reason  of  any  perils  excepted  by  the  bill  of  lading,  because  they 
were  lost  at  a  time  when  the  defendants  were  committing  a  breach 
of  their  contract  by  deviating  from  the  voyage  provided  for  by  the 
bill  of  lading.     *     *     * 

If  the  counsel  for  the  defendants  was  right  in  his  argument  that 
there  is  no  contract  for  any  particular  voyage  in  the  bill  of  lading, 
just  conceive  what  a  state  of  things,  in  a  business  point  of  view,  would 
result.  The  object  of  the  carriage  of  the  goods  from  port  to  port  is 
that  they  may  be  sold  or  otherwise  dealt  with  at  the  place  of  destina- 
tion ;  and  the  person  who  wants  them  at  that  place  for  sale  or  use 
there  acts  upon  the  assumption  that  they  will  arrive  there  at  or  about 
a  certain  time  in  the  ordinary  course  of  a  voyage  there  from  the  port 
of  shipment.  If  the  argument  for  the  defendants  were  correct,  he 
could  not  tell  at  what  time  he  could  calculate  on  having  them.  The 
indorsee  of  a  bill  of  lading  could  not  tell  when  he  was  likely  to  receive 
the  goods.     Business  could  not  be  carried  on  upon  those  terms. 

Again,  with  regard  to  the  insurance  of  goods,  similar  difficulties" 
would  arise.  How  could  the  goods  be  insured,  if  it  was  not  known 
for  what  voyage  they  were  to  be  insured?  To  suppose  that  there  is 
no  contract  for  a  particular  voyage  in  the  bill  of  lading  seems  to  me 
to  be  to  disregard  the  whole  course  of  mercantile  business.  It  is  ob- 
viously a  most  important  part  of  the  contract  of  carriage  by  sea  that 
the  route  by  which  the  goods  are  to  be  brought  should  be  determined ; 
and  accordingly  it  seems  to  me  to  be  provided  for  in  the  bill  of  lad- 
ing. The  ordinary  form  of  bill  of  lading  states  that  the  goods  are 
shipped  on  such  a  ship  lying  in  the  port  of  shipment  and  bound  for 
the  port  of  destination,  and  if  the  ship  is  to  go  to  other  places  between 
those  ports  the  names  of  them  are  inserted.  Those  terms  appear  to 
me  to  describe  a  voyage,  and,  such  being  the  description  of  the  voyage, 
what  is  the  true  effect  of  the  document  with  regard  to  the  voyage 
so  described? 

A  bill  of  lading  is  a  common  mercantile  document,  which  has  been 
used  for  hundreds  of  years,  and  I  think  that  business  men  and  courts 
of  law  have  always  interpreted  it  in  one  way,  namely,  that,  if  the  only 
voyage  mentioned  is  from  the  port  of  shipment  to  the  port  of  destina- 
tion, it  must  be  a  voyage  on  the  ordinary  track  by  sea  of  the  voyage 
from  the  one  place  to  the  other.     So  here,  if  the  description  of  the 


54  THE  carrier's  undertaking.  (Part  2 

voyage  had  been  merely  from  Fiume  to  Dunkirk,  I  think  the  contract 
would  have  been  a  voyage  on  the  ordinary  sea  track  of  a  voyage  from 
Fiume  to  Dunkirk,  and  any  departure  from  that  track  in  the  absence 
of  necessity  would  be  a  deviation.  Of  course  when  I  speak  of  the 
ordinary  sea  track  I  do  not  mean  an  exact  line,  for  it  would  neces- 
sarily vary  somewhat  according  to  circumstances ;  the  ordinary  track 
for  sailing  vessels  would  vary  according  to  the  wind ;  the  ordinary 
track  for  a  steamer,  again,  might  be  different  from  that  for  a  sailing 
vessel ;  I  mean  the  ordinary  track  of  such  a  voyage  according  to  a 
reasonable  construction  of  the  term. 

In  the  present  case  liberty  is  given  to  call  at  any  ports  in  any  order. 
It  was  argued  that  that  clause  gives  liberty  to  call  at  any  port  in  the 
world.  Here,  again,  it  is  a  question  of  the  construction  of  a  mercan- 
tile expression  used  in  a  mercantile  document,  and  I  think  as  such 
the  term  can  have  but  one  meaning,  namely,  that  the  ports,  liberty  to 
call  at  which  is  intended  to  be  given,  must  be  ports  which  are  sub- 
stantially ports  which  will  be  passed  on  the  named  voyage.  Of  course 
such  a  term  must  entitle  the  vessel  to  go  somewhat  out  of  the  ordinary 
track  by  sea  of  the  named  voyage,  for  going  into  the  port  of  call  in 
itself  would  involve  that.  To  "call"  at  a  port  is  a  well-known  sea 
term ;  it  means  to  call  for  the  purposes  of  business,  generally  to  take 
in  or  unload  cargo,  or  to  receive  orders ;  it  must  mean  that  the  ves- 
sel may  stop  at  the  port  of  call  for  a  time,  or  else  the  liberty  to  call 
would  be  idle.  I  believe  the  term  has  always  been  interpreted  to  mean 
that  the  ship  may  call  at  such  ports  as  would  naturally  and  usually 
be  ports  of  call  on  the  voyage  named.  If  the  stipulation  were  only 
that  she  might  call  at  any  ports,  the  invariable  construction  has  been 
that  she  would  only  be  entitled  to  call  at  such  ports  in  their  geograph- 
ical order;  and  therefore  the  words  "in  any  order"  are  frequently 
added,  but  in  any  case  it  appears  to  me  that  the  ports  must  be  ports 
substantially  on  the  course  of  the  voyage. 

It  follows  that,  when  the  defendants'  ship  went  off  the  ordinary 
track  of  a  voyage  from  Fiume  to  Dunkirk  to  a  port  not  on  the  course 
of  that  voyage,  such  as  Glasgow,  there  was  a  deviation,  and  she  was 
then  on  a  voyage  different  from  that  contracted  for  to  which  the  ex- 
cepted perils  clause  did  not  apply;  and  therefore  the  shipowners  are 
responsible  for  the  loss  of  the  goods. ^^     *     *     * 

11  Ace.  Gl.vnn  v.  Margetson.  [1893]  A.  C.  351  (oranges  shipped  at  Malaga  for 
Liverpool  "with  liberty  to  proceed  and  stay  at  any  port  or  ports  in  any  rota- 
tion in  the  Mediterranean"  damaged  by  delay  caused  by  proceeding  to  a  Med- 
iterranean port  out  of  the  course  of  a  voyage  to  Liverpool). 

"On  the  trial  he  [plaintiff]  produced  written  evidence  of  the  contract  to 
transport,  to  wit,  the  bill  of  lading.  This  contract,  however,  contained  no  lim- 
itation as  to  the  route  to  be  taken  by  the  vessel.  It  was  simply  a  contract  that 
the  barley  was  to  be  'delivered  at  the  port  of  Baltimore  in  good  order,  the 
dangers  of  the  seas  excepted.'  This  authorized  the  carrier  to  take  either  of 
several  customary  and  usual  routes.  Such  is  the  legal  effect  of  the  contract. 
Its  effect  was  the  same  as  if  the  provision  had  been  inserted  in  the  contract, 


Ch.  1)  THE   CONDUCT   OF   TRANSPORTATION.  55 

PHELPS,  JAMES  &  CO.  v.  HILL. 

(Court  of  Appeal.     [1891]  1  Q.  B,  605.) 

Action  for  failure  to  deliver  according  to  the  contract  of  carriage 
a  quantity  of  tin  plates  shipped  by  plaintiffs  on  defendants'  vessel  at 
Swansea,  to  be  transported  to  New  York,  collision,  perils  of  the  sea, 
and  other  perils  mentioned  in  the  bill  of  lading  excepted.  At  a  trial 
before  a  special  jury  it  appeared  that  the  vessel  carried  cargo  for 
many  other  shippers,  that  in  consequence  of  damage  received  in  bad 
weather  at  sea  the  vessel  put  into  Queenstown,  that  repairs  to  the 
vessel  were  necessary  to  enable  her  to  continue  her  voyage,  and  that 
after  temporary  refitting  at  Queenstown  the  master,  by  orders  from 
his  owners,  but  without  communication  with  the  owners  of  cargo, 
sailed  for  Bristol  for  repairs,  and  that  the  vessel  was  sunk  in  collision 
shortly  before  reaching  Bristol  and  the  cargo  damaged.  Repairs 
might  have  been  made  at  Swansea,  which  was  on  the  way  from 
Queenstown  to  Bristol,  and  sixty  miles  nearer  than  Bristol.  The  chief 
reason  for  going  to  Bristol  was  that  the  ship  owners  had  a  yard  of 
their  own  there,  in  which  the  ship  could  be  repaired  more  cheaply 
and  quickly  than  anywhere  else.  The  trial  judge  left  to  the  jury  the 
question  whether  the  master  exercised  the  discretion  of  a  reasonable 
man  in  the  interest  of  ship  and  cargo  in  going  to  Bristol  instead  of 
Swansea.  The  jury  found  that  there  was  no  deviation,  and  judg- 
ment was  entered  for  defendants.  Plaintiffs  moved,  on  grounds 
which  appear  in  the  opinion,  to  set  aside  the  verdict  and  judgment  and 
to  enter  a  judgment  for  them. 

LiNDLEY,  L.  J.^"  The  voyage  being  fixed  by  the  contract  of  af- 
freightment, it  is  the  duty  of  the  master  to  proceed  to  the  port  of  de- 
livery without  delay,  and  without  any  unnecessary  departure  from 
the  direct  and  usual  course.  But  circumstances  may  arise  which  ren- 
der it  necessary  to  depart  from  this  usual  course,  and  tempestuous 
weather,   injuring  the   ship  and   rendering   it  necessary  to  put   into 

that  the  carrier  was  at  liberty  to  tal<e  any  customary  or  usual  route,  in  his 
discretion."    Hunt,  C,  in  White  v.  Ashtou,  51  N.  Y.  280  (1873). 

"A  shipper,  who  receives  a  bill  of  lading  for  goods  consigned  to  a  point  be- 
yond the  terminus  of  the  initial  carrier's  line,  authorizes  the  initial  carrier 
to  select  any  usual  or  reasonably  direct  and  safe  route  by  which  to  forward 
after  the  goods  reach  the  end  of  his  line,  nnless  the  particular  line  by  which 
the  goods  consigned  are  to  be  forwarded  is  designated  in  the  bill  of  lading. 
In  such  a  case,  the  bill  of  lading  being  silent  in  respect  to  the  line  by  which 
the  goods  are  to  be  forwarded,  its  effect  is  the  same  as  if  a  provision  were 
therein  inserted  that  the  carrier  should  have  a  right  to  select  at  his  discretion 
any  customary  or  usual  route  which  was  regarded  as  safe  and  responsible." 
Mitchell,  J.,  in  Snow  v.  Indiana  B.  &  W.  Ry.  Co.,  109  Ind.  422,  9  N.  E.  702 
(18SG). 

12  The  statement  has  been  rewritten,  and  the  concurring  opinions  of  Lopes 
and  Kay,  L.  JJ.,  omitted. 


56  THE  carrier's  undertaking.  (Part  2 

some  port  of  repair,  is  one  of  those  circumstances.  When  a  ship  is 
thus  injured  it  is  the  duty  of  the  master  to  do  the  best  he  can  for  all 
concerned ;  but  his  primary  duty  being  to  complete  the  voyage  with 
as  little  delay  as  possible,  it  follows  that  his  first  care  ought  to  be  to 
get  his  ship  repaired  as  soon  as  possible,  and  to  resume  his  voyage  as 
quickly  as  he  can.  The  same  principle  may  be  expressed  in  other 
words ;  e.  g.,  by  saying  that  he  ought  to  go  to  the  nearest  port  where 
the  necessary  repairs  can  be  most  quickly  done,  or  by  saying  that  there 
ought  to  be  no  unnecessary  departure  from  the  proper  course  of  the 
voyage  and  no  unnecessary  delay  in  prosecuting  it. 

But  in  whatever  language  the  rule  is  expressed,  it  must  not  be  so 
worded  as  to  exclude  the  element  of  reasonableness.  By  "possible" 
and  "necessary"  is  meant  reasonably  possible  and  reasonably  neces- 
sary, and  in  considering  what  is  reasonably  possible  or  reasonably  nec- 
essary every  material  circumstance  must  be  taken  into  account — e.  g., 
danger,  distance,  accommodation,  expense,  time,  and  so  forth.  No 
one  of  these  can  be  excluded.  Mr.  Barnes  invited  us  to  exclude  the 
element  of  expense ;  but  to  say  that,  as  a  matter  of  law,  .expense  is  to 
be  disregarded,  would  be  to  make  the  rule  far  too  rigid.  Suppose 
there  are  two  ports,  both  equally  safe  and  accessible,  and  in  all  re- 
spects proper  for  repairing  the  ship ;  but  suppose  one  is  a  dear  port 
compared  with  the  other,  a  reasonable  man  would  naturally  and  prop- 
erly choose  the  cheaper.  Suppose  the  cheaper  port  to  be  a  little  more 
out  of  the  way  than  the  other,  is  it  reasonable  to  say  that  the  master 
must  go  to  the  other?  I  can  find  no  authority  for  so  rigid  a  rule.  All 
the  decisions  on  the  subject  of  deviation  show  that  what  is  reasonably 
necessary  is  permissible  in  these  cases.  See  1  Arn.  Ins.  (2d  Ed.)  p. 
454;   Id.  (6th  Ed.)  p.  502;    1  Phillips'  Ins.,  §§  1018-1022. 

Lord  Mansfield  said,  in  Lavabre  v.  Wilson,  1  Dougl.  291 :  "A  de- 
viation from  necessity  must  be  justified  both  as  to  substance  and  man- 
ner. Nothing  more  must  be  done  than  what  the  necessity  requires." 
But  this  passage,  though  often  referred  to,  has  never  been  under- 
stood as  excluding  the  element  of  reasonableness.  Moreover,  if  a 
master  of  competent  skill  and  knowledge,  and  acting  bona  fide  in  the 
interest  of  all  concerned,  has  chosen  one  port  in  preference  to  another, 
then  although  the  court  or  a  jury  may  and  ought  to  take  a  different 
view  if  they  come  to  the  conclusion  that  he  ought  to  have  acted  dif- 
ferently, they  ought  not  to  come  to  such  a  conclusion  on  light  grounds. 
In  a  nicely  balanced  case  they  are  fully  justified  in  attaching  consid- 
erable weight  to  the  master's  judgment  and  in  allowing  that  to  turn  the 
scale  in  their  own  minds.  This  is  what  I  understand  Mr.  Phillips  to 
mean  in  section  1022  of  his  well-known  book,  and  what  the  court  laid 
down  in  the  American  case  of  Turner  v.  Protection  Insurance  Co.,  25 
Me.  515,  43  Am.  Dec.  294.  In  that  case  the  court  said:  "The  master  in 
most  cases  must  be  the  principal  judge  of  the  degree  of  peril  to  which 
his  vessel  is  exposed,  and  of  her  ability  to  proceed  with  safety  to  a 


Ch.   1)  THE   CONDUCT   OF    TRANSPORTATION.  5T 

nearer  or  to  a  more  distant  port,  and  of  the  facilities  for  repairing 
her  at  different  ports.  If  he  is  competent  and  faithful,  his  decision 
respecting  these  matters,  made  in  good  faith,  should  be  satisfactory 
to  all  interested,  although  he  may  err  in  judgment."  That  was  an 
action  on  a  policy  in  which  deviation  was  relied  on  as  a  defence. 
There  was  no  conflict  between  the  cargo  owner  and  the  ship  owner,, 
as  in  the  case  before  us.  But  the  same  principle  is  applicable  to  both 
classes  of  cases.  Applying  this  principle  to  the  present  case,  can  we 
set  the  verdict  of  the  jury  aside?    I  think  not. 

Mr.  Barnes  complained  of  misdirection  on  the  ground  that  the 
learned  judge  ought  to  have  told  the  jury  that  the  cargo  owners  ought 
to  have  been  communicated  with  at  Queenstown  and  have  been  con- 
sulted as  to  what  ought  to  be  done.  No  authority  was  cited  in  sup- 
port of  this  proposition,  and  principle  and  considerations  of  expedi- 
ency are  against  it.  Are  the  cargo  owners  to  be  consulted  about  re- 
pairing the  ship?  That  is  nothing  to  them,  provided  the  voyage  is 
duly  completed.  Are  they  to  be  consulted  as  to  what  is  to  be  done 
with  the  cargo?  How  is  this  possible  if  the  ship  is  a  general  ship? 
How  is  the  master  to  know  who  the  owners  of  the  cargo  are  ?  What 
is  he  to  do  if  they  differ  in  opinion?  To  hold  that  they  ought  to  be 
consulted  would  be  to  impose  a  new  and  intolerable  burden  on  the 
master. 

It  was  also  contended  that  there  was  misdirection  in  omitting  to  tell 
the  jury  that  no  deviation  could  be  justified  that  was  not  necessary, 
and  that  the  judge  did  not  sufficiently  explain  the  importance  of  this 
to  the  jury.  But  this  contention  is  based  on  the  assumption  that  what 
is  meant  by  "necessary"  is  something  much  more  rigid  than  what  is 
reasonably  necessary  in  a  nautical  and  commercial  sense. 

Then  it  was  said  that  the  verdict  was  against  the  weight  of  the 
evidence ;  that  the  evidence  showed  that  the  master  sacrificed  the  in- 
terests of  the  cargo  owners  to  the  interests  of  the  shipowners ;  that  he 
acted  on  their  orders  and  not  on  his  own  judgment;  that  even  if  he 
was  justified  in  leaving  Queenstown  he  ought  to  have  put  into  Swan- 
sea, and  not  Bristol.  Having  studied  the  evidence  with  care,  I  can- 
not disagree  with  the  jury.  I  find  it  quite  impossible  to  say  that 
twelve  men  could  not  have  found  a  verdict  for  the  defendants  if  they 
had  really  understood  the  evidence.  I  am  satisfied  that  the  master  did 
consider  the  interests  of  the  cargo  owners  as  well  as  those  of  his  im- 
mediate employers,  and  that  he  did  bona  fide  act  to  the  best  of  his 
judgment  in  the  matter.  It  may  be  that  Swansea  would  have  been  as 
good  and  in  some  respects  a  better  port  to  put  into  than  Bristol ;  but, 
on  the  other  hand,  there  was  less  risk  of  delay  in  Bristol,  and  there 
were  advantages  to  the  shipowners  which  there  was  no  real  reason 
for  sacrificing.  These  were  all  matters  fairly  before  the  jury,  and 
for  them  to  consider  and  determine. 

In  my  opinion,  it  would  be  wrong  to  disturb  the  verdict.    It  is  not 


58  THE  carrier's  undertaking.  (Part  2 

necessary  to  determine  the  point  raised  by  the  defendants  on  the 
clause  as  to  insurance,  but  I  am  inclined  to  think  that  it  has  reference 
to  the  voyage  contracted  for,  and  not  to  unjustifiable  departures  from 
it.     The  motion  is  refused  with  costs. ^^ 


13  "It  is  insisted  in  the  assignment  of  errors  that,  under  the  facts  in  this 
case,  an  eniersency  had  arisen  which  justified  a  deviation  in  route.  Inasmuch 
as  the  one  clioson  l)y  the  shipper  was  closeil  by  a  striice,  and  the  other,  equally 
good,  was  open.  There  is  no  doubt  that  when,  in  case  of  an  unforeseen  neces- 
sity, the  Siifety  of  the  shipment  demands  it.  a  deviation  from  the  route  agreed 
upon  witli  the  shlpi>er  may  be  made,  and  will  be  justifiable,  as,  for  instance, 
forwarding  perishable  freight  by  rail  when  a  storm  prevents  a  boat  from  pro- 
ceeding upon  its  voyage.  But,  where  the  goods  can  be  properly  cared  for  and 
held  until  the  shipper  can  be  communic-ated  with,  the  carrier  will  not  be  jus- 
tified in  selecting  another  route,  without  notice  to  him  and  instructions  from 
him.  *  ♦  *  It  clearly  apiiears  in  this  case  that  the  plaintiffs  could  have 
easily  been  consulted  by  letter  or  wire,  and  their  instructions  taken,  when  it 
was  found  that  the  route  selected  was  closed  at  Evansville.  and  the  shipment 
safely  held  in  the  meantime ;  and,  failing  to  do  this,  the  defendant  road  must 
be  held  to  be  liable  for  any  injury  resulting  upon  the  substituted  route.  It 
also  clearly  appears  that  the  freight  was  not  of  such  perishable  nature  as  to 
necessitate  tlie  immediate  transshipment,  without  notice  to  plaintiff,  to  an- 
other route,  in  order  to  prevent  their  loss."  Wilkes,  J.,  in  Louisville  &  Nash- 
ville R.  Co.  V.  Odil,  96  Tenn.  61.  3.3  S.  W.  611,  54  Am.  St.  Rep.  S20  (ISO*!).  Ace. 
Fisher  v.  Boston  &  M.  R.  Co.,  99  Me.  338,  59  Atl.  532,  68  L.  R.  A.  390,  105  Am. 
St.  Rep.  2S3  (1904). 

A  carrier  is  not  justified  in  changing  his  route  merely  to  avoid  delay. 
Crosby  v.  Fitch.  12  Conn.  410,  31  Am.  Dec.  745  (1838).  channel  obstructed  by 
ice;  Hand  v.  Baynes.  4  Whart.  (Pa.)  204,  33  Am.  Dec.  54  (1839),  locks  in  canal 
out  of  order.  Conversely,  he  may  justify  a  delay,  though  it  might  have  been 
avoided  by  change  of  route.  Broadwell  v.  Butler,  6  McLean,  296,  Fed.  Cas.  No. 
1.910  (1854)  waiting  thirty  days  for  high  water  in  the  Ohio  river;  Bennett 
v.  Byram.  38  Miss.  20,  75  Am.  Dec.  90  (1859),  waiting  six  months  for  high 
water.  Even  though  the  bill  of  lading  gives  the  carrier  a  right  to  forward  by 
another  route,  available,  but  more  expensive.  Empire  Transportation  Co.  v. 
Wallace.  68  Pa.  302,  8  Am.  Rep.  178  (1871).  And  in  case  of  disaster  to  a  car- 
rying vessel,  the  carrier  may  detain  the  cargo  for  repairs  to  the  vessel  in- 
stead of  transshipping  It.     The  Strathdon  (D.  C.)  89  Fed.  374.  380  (1898). 

Transhipment. — "A  ship  departs  from  Bordeaux  or  elsewhere;  it  hapi)€ns 
sometimes  that  she  is  lost,  and  they  save  the  most  that  they  can  of  the  wines 
and  the  other  goods.  The  merchants  and  the  master  are  in  great  dispute, 
and  the  merchants  claim  from  the  master  to  have  their  gomls.  They  may  well 
have  them,  paying  their  freight  for  such  part  of  the  voj-age  as  the  ship  has 
made,  if  it  pleases  the  master.  And  if  the  master  wishes,  he  may  proi)erly  re- 
pair his  ship,  if  she  is  in  a  state  to  be  speedily  repaired ;  and  if  not,  he  may 
hire  another  ship  to  complete  the  voyage,  and  the  master  shall  have  his 
freight  for  as  much  of  the  cargo  as  has  been  saved  in  any  manner.  And  this 
is  the  judgment  in  this  case."  The  Charter  of  Oleron  of  the  Judgments  of  the 
Sea.  art.  4  (eleventh  or  twelfth  century). 

"That  the  Rolls  of  Oleron  were  received  as  law  in  the  maritime  courts  of 
England  after  12  Edward  III  is  clear  from  the  language  of  a  judgment  given 
by  the  mayor  and  bailiffs  of  the  city  of  Bristol,  and  certified  by  them  to  the 
Lord  Chancellor.  In  this  judgment  the  law  and  custom  of  Oleron  (lex  et 
consuetudo  de  Oleron)  are  recited  as  founding  the  obligation  of  the  master  of 
a  ship  to  protect  the  cargo  from  tresjiass  on  the  part  of  the  crew,  and  sen- 
tence was  given  in  accordance  with  that  law  in  favor  of  the  plaintiff."  Sir 
Travers  Twiss,  Black  Book  of  the  Admiralty,  vol.  I,  p.  Ixii. 

"The  Judgments  of  the  Sea  *  *  *  have  been  accepted  as  a  common 
maritime  law  in  every  country  which  borders  on  the  Atlantic  Ocean  or  on  the 
North  Sea,  whilst  the  kings  of  Castile  gave  them  the  authority  of  law  in 


Ch.   1)  THE    CONDUCT   OF   TRANSPORTATION.  59 

SECTION  4.— EFFECT  OF  DEVIATION 


CONSULATE  OF  THE  SEA,  c.  165 :  "If  a  merchant  or  mariner 
or  any  one  else,  who  accepts  a  commission  for  a  given  voyage  or  to 
a  known  place,  loses  all  that  which  is  committed  to  his  charge  without 
any  fault  on  his  part,  he  is  not  bound  to  replace  anything  nor  to  com- 
pensate him  who  has  entrusted  him  with  the  commission.^*  But  nev- 
ertheless, if  the  said  commissioner  shall  carry  the  goods  committed  to 
his  charge  upon  another  voyage  or  to  another  place  from  that  which 
was  agreed  upon  with  him  who  entrusted  the  commission  to  him,  if 
the  goods  entrusted  to  him  are  lost,  the  commissioner  is  bound  to  make 
good  everything  to  him  who  has  entrusted  him  with  the  commission, 
since  he  has  carried  the  goods  to  another  place  and  upon  another  voy- 
age which  had  not  been  agreed  upon.     *     *     *  " 

Chapter  166 :  "If  *  *  *  an  occasion  for  reprisals  arises,  or 
for  an  embargo  of  the  authorities,  or  armed  ships  of  the  enemy  come 
there,  *  *  *  the  commissioners  may  arrange  with  the  managing 
owner  of  the  ship  or  vessel  in  which  they  are  to  go  to  another  place 
where  they  have  no  fear  of  the  circumstances  above  mentioned ; 
*  *  *  provided  it  be  to  preserve  the  goods  *  *  *  and  for  no 
other  reason,  and  this  should  be  done  without  any  fraud." 

Chapter  167 :  *  ■  *  *  "And  accordingly  our  predecessors  of  old- 
en time  saw  and  adjudged  that  managing  owners  of  ships  or  vessels 
who  *  *  *  carried  commissions  from  others,  ought  not  to  be  in 
a  worse  condition  than  another  commissioner,  *  *  *  Neverthe- 
less, if.  there  be  in  his  ship  goods  of  merchants,  and  there  be  no  one 
in  charge  of  them,  and  the  managing  owner  of  the  ship  has  no  com- 
mission respecting  them,  further  than  that  he  ought  to  deliver  them  to 


their  ports  in  the  Mediterranean,  and  the  trading  cities  of  the  Baltic  incor- 
porated their  provisions  into  their  own  maritime  law."  Id.  vol.  II,  p.  xlvii. 

"On  pent  tres  lescitimement  attriluier.  ainsi  que  Tout  fait  sir  Travers  Twiss 
et  le  professeur  hollandaig  Pols,  la  paternite  de  ces  ju.sements  de  la  mer  aux 
juges  de  la  mer  d'Oleron,  qu'on  y  vole  des  sentences  rendues  dans  des  proces 
i-^els  ou  des  declarations  sur  le  droit,  fruit  d'nne  lona^ue  exi>erience.  et  con- 
signees par  ces  hommes  rompus  aux  affaires  maritimes  dans  nn  registre  ou  sur 
des  roles  pour  en  perpotuer  la  memoire."  Desjardins,  Introduction  Historique 
a  I'etude  du  Droit  Commercial  Maritime,  p.  33. 

Consulate  of  the  Sea,  c.  4(5:  "If  a  managing  owner  of  a  ship  or  vessel 
shall  be  in  any  place,  and  shall  accept  on  freight  goods  of  merchants  to 
carry  to  another  place,  which  place  shall  have  been  agreed  upon  between  the 
said' managing  owner  and  the  merchants,  he  is  under  the  necessity  of  convey- 
ing the  goods  to  the  place,  to  which  he  has  agreed  with  and  promised  to  the 
merchants  to  carry  them,  in  his  own  ship.  And  if  the  managing  owner  of  the 
ship  shall  put  them  on  board  of  another  ship  or  vessel  without  the  consent  or 
knowledge  of  the  merchants,  although  tliat  ship  or  vessel  may  be  larger  or  bet- 
ter than  his  own,  if  the  goods  shall  be  lost  or  shall  be  spoilt,  or  he  to  whom  the 

14  Compare  Woodlife's  Case,  post,  p.  312. 


60  THE    carrier's   UNDERTAKING.  (Part  2 

some  person  in  the  port  where' he  ought  to  discharge,  if  the  conditions 
above  said  exist  so  that  he  dare  not  enter  the  port,  the  managing 
owner  of  the  ship  or  vessel  ought  not  to  carry  them  afterwards  to  an- 
other port,  since  he  has  no  commission  to  enable  him  to  sell  them,  con- 
sequently he  ought  to  restore  them  to  those  merchants  who  delivered 
them  to  him.  And  if  the  managing  owner  of  the  ship  or  vessel  car- 
ries them  to  another  port,  and  the  goods  are  lost,  the  managing  owner 
of  the  ship  or  vessel  is  bound  to  replace  and  make  good  the  whole  of 
them." 


DAVIS  V.  GARRETT. 

(Court  of  Common  Pleas,  Trinity  Term,  1830.    6  Bing.  716.) 

The  declaration  stated  that  plaintiff  at  the  special  instance  and  re- 
quest of  defendant  delivered  to  defendant  on  board  the  vessel  Safety, 
and  defendant  received,  a  certain  quantity  of  lime  to  be  carried  upon 
said  vessel  from  Bewly  Cliff  to  Regent's  Canal,  the  act  of  God,  the 
king's  enemies,  fire  and  all  and  every  other  dangers  and  accidents  of 
the  seas,  rivers  and  navigation  excepted,  for  certain  reasonable  re- 
ward; that  the  vessel  sailed  on  the  intended  voyage  with  the  lime  on 
board,  and  that  it  then  became  the  duty  of  the  defendant  to  carry  said 
lime  to  Regent's  Canal,  the  perils  above  mentioned  excepted,  by  the 
direct,  usual  and  customary  way,  course  and  passage,  without  any 
voluntary  and  unnecessary  deviation  or  departure  from  or  delay  or 
hindrance  in  the  same,  but  that  defendant,  though  not  prevented  by 
any  of  the  excepted  matters,  did  not  so  carry  the  lime,  but  by  John 
Town,  his  master  and  agent,  without  the  knowledge  and  against  the 
will  of  the  plaintiff,  voluntarily  and  unnecessarily  deviated  and  depart- 
ed and  navigated  the  vessel  from  and  out  of  such  usual  and  customary 
course,  to  wit  to  East  Swade  and  to  Whitstable  Bay,  and  delayed  the 
vessel  for  twenty  four  hours,  and  that  by  reason  of  such  deviation  and 
delay  she  was  out  of  her  course  and  was  exposed  to  a  great  storm,  and 
thereby  wrecked  and  the  lime  destroyed  to  plaintiff's  damage. 

At  the  trial  before  Tindal,  C.  J.,  it  appeared  that  the  master  of  the 
defendant's  barge  had  deviated  from  the  usual  and  customary  course 
of  the  voyage  mentioned  in  the  declaration,  without  any  justifiable 
cause;  and  that  afterwards,  and  whilst  such  barge  was  out  of  her 
course,  in  consequence  of  violent  and  tempestuous  weather,  the  sea 
communicated  with  the  lime,  which  thereby  became  heated,  and  the 
barge  caught  fire ;  and  the  master  was  compelled,  for  the  preservation 
of  himself  and  the  crew,  to  run  the  barge  on  shore,  where  both  the 
lime  and  the  barge  were  entirely  lost. 

goods  belong  shall  sustain  any  loss  or  incur  any  expense,  the  managing  owner 
of  the  ship  is  bound  to  make  compensation  for  the  goods  which  shall  be  lost, 
and  all  the  interest  which  he  to  whom  the  goods  belong  may  h.ave  incurred,, 
and  he  shall  be  believed  on  his  oath." 


Ch.    1)  THE    CONDUCT   OF   TRANSPORTATION.  61 

A  verdict  having  been  found  for  the  plaintiff, 

Taddy,  Serjt.,  obtained  a  rule  nisi  for  a  new  trial,  or  to  arrest  the 
judgment,  on  the  ground,  first,  that  the  deviation  by  the  master  of  the 
barge  was  not  a  cause  of  the  loss  of  the  lime  sufficiently  proximate  to 
entitle  the  plaintiff  to  recover,  inasmuch  as  the  loss  might  have  been 
occasioned  by  the  same  tempest  if  the  barge  had  proceeded  in  her 
direct  course ;  and,  secondly,  that  the  declaration  contained  no  alle- 
gation of  any  undertaking  on  the  part  of  the  defendant  to  carry  the 
lime  directly  from  Dewly  Cliff  to  the  Regent's  Canal,  an  allegation 
which,  it  was  contended  on  the  authority  of  Max  v.  Roberts,  12  East, 
89,  was  essential  to  the  plaintiff's  recovery. 

TiXDAL,  C.  J.'^  *  *  *  As  to  the  first  point.  *  *  *  the  ob- 
jection taken  is  that  there  is  no  natural  or  necessary  connection  be- 
tween the  wrong  of  the  master  in  taking  the  barge  out  of  its  proper 
course  and  the  loss  itself;  for  that  the  same  loss  might  have  been 
occasioned  by  the  very  same  tempest,  if  the  barge  had  proceeded  in 
her  direct  course. 

But  if  this  argument  were  to  prevail,  the  deviation  of  the  master, 
which  is  undoubtedly  a  ground  of  action  against  the  owner,  would 
never,  or  only  under  very  peculiar  circumstances,  entitle  the  plain- 
tiff to  recover.  For  if  a  ship  is  captured  in  the  course  of  deviation, 
no  one  can  be  certain  that  she  might  not  have  been  captured  if  in 
her  proper  course.  And  yet,  in  Parker  v.  James,  4  Campb.  112,  where 
the  ship  was  captured  whilst  in  the  act  of  deviation,  no  such  ground 
of  defense  was  even  suggested.  Or,  again,  if  the  ship  strikes  against 
a  rock,  or  perishes  by  storm  in  the  one  course,  no  one  can  predicate 
that  she  might  not  equally  have  struck  upon  another  rock,  or  met  with 
the  same  or  another  storm  if  pursuing  her  right  and  ordinary  voyage. 

The  same  answer  might  be  attempted  to  an  action  against  a  defend- 
ant who  had,  by  mistake,  forwarded  a  parcel  by  the  wrong  convey- 
ance, and  a  loss  had  thereby  ensued;  and  yet  the  defendant  in  that 
case  would  undoubtedly  be  liable. 

But  we  think  the  real  answer  to  the  objection  is,  that  no  wrong- 
doer can  be  allowed  to  apportion  or  qualify  his  own  wrong ;  and  that 
as  a  loss  has  actually  happened  whilst  his  wrongful  act  was  in  oper- 
ation and  force,  and  which  is  attributable  to  his  wrongful  act,  he  can- 
not set  up  as  an  answer  to  the  action  the  bare  possibility  of  a  loss,  if 
his  wrongful  act  had  never  been  done.  It  might  admit  of  a  different 
construction  if  he  could  show,  not  only  that  the  same  loss  might  have 
happened,  but  that  it  must  have  happened  if  the  act  complained  of 
had  not  been  done ;  but  there  is  no  evidence  to  that  extent  in  the  pres- 
ent case. 

Upon  the  objection  taken  in  arrest  of  judgment,  *  *  *  we  can- 
not but  think  that  the  law  does  imply  a  duty  in  the  owner  of  a  vessel, 

15  The  statement  has  been  shortened,  and  parts  of  the  opinion  omitted. 


62  THE  carrier's  undertaking.  (^Part  2 

whether  a  general  ship  or  hired  for  the  special  purpose  of  the  voyage, 
to  proceed  without  unnecessary  deviation  in  the  usual  and  customary 
course. 

We  therefore  think  the  rule  should  be  discharged,  and  that  judg- 
ment should  be  given  for  the  plaintiff.     Rule  discharged.^® 


CONSULATE  OF  THE  SEA,  c.  49:  "*  *  *  If  the  said 
managing  owner  of  a  ship  shall  make  the  said  agreement  or  promise 
[to  tow  another  vessel]  without  the  knowledge  and  assent  of  the  mer- 
chants who  shall  be  on  board  the  ship  or  shall  intend  to  put  or  shall 
have  put  goods  on  board,  if  any  accident  supervenes  the  merchants  are 
not  responsible  for  anything.  On  the  contrary,  if  the  said  merchants 
sustain  any  damage  *  *  *  the  said  managing  owner  of  the  ship 
is  bound  to  make  full  restitution,  even  if  the  ship  shall  have  to  be 
sold.     *     *     *" 

16  In  Lilley  v.  Donbleday.  7  Q.  B.  D.  510  (1881).  an  action  against  a  ware- 
houseman for  loss  by  fire,  Grove,  J.,  said:  "The  defendant  was  entrusted  with 
the  goods  for  a  particular  purpose  and  to  keep  them  in  a  particular  place. 
He  took  them  to  another,  and  must  be  responsible  for  what  took  place  there. 
The  only  exception  I  see  to  this  general  rule  is  where  the  destruction  of  the 
goods  must  take  place  as  inevitably  at  one  place  as  at  the  other.  If  a  bailee 
elects  to  deal  with  the  property  entrusted  to  him  in  a  way  not  authorized  by 
the  bailor,  he  takes  upon  himself  the  risks  of  so  doing,  except  where  the  risk 
is  independent  of  his  acts  and  inherent  in  the  property  itself.  That  proposi- 
tion is  fully  supported  by  the  case  of  Davis  v.  Garrett,  which  contains  very 
little  that  is  not  applicable  to  this  case." 

See,  also,  note  in  26  L.  R.  A.  366  on  liability  of  one  who  drives  a  hired  horse 
beyond  the  place  agreed.  A  mere  deviation,  though  willful  and  without  ex- 
cuse, does  not  constitute  a  conversion.  So.  Pac.  Co.  v.  Booth  (Tex.  Civ.  App.> 
39  S.  W.  585  (1807) ;  and  see  an  article  by  Professor  G.  L.  Clark  on  The  Test 
of  Conversion,  21  Harv.  Law  llev.  408,  410. 

*A  carrier  guilty  of  unexcused  departure  from  the  agreed  route  or  method 
of  transportation  is  liable  for  loss,  though  from  a  cause  excepted  in  the  bill 
of  lading.  Merrick  v.  Webster,  3  Mich.  268  (1854),  goods  carried  by  steamer 
Instead  of  sailing  vessel;  Bazin  v.  S.  S.  Co.,  Fed.  Cas.  No.  1.1.52  (1857);  Good- 
rich V.  Thompson,  44  N.  Y.  324  (1871),  by  another  vessel  than  that  named; 
Maghee  v.  Camden  R.  Co.,  45  N.  Y.  514,  6  Am.  Rep.  124  (1871),  by  water  in- 
stead of  by  rail ;  The  Delaware,  post,  p.  426.  on  deck  instead  of  below  ;  Robin- 
son V.  Merchants'  Despatch,  45  Iowa,  470  (1877),  breach  of  contract  to  carry 
without  transfer  to  cars  of  another  company:  Chicago,  etc.,  Co.  v.  Dunlap, 
71  Kan.  67,  80  P.  34  (1905),  goods  inadvertently  carried  beyond  destination, 
agreement  as  to  value  held  unenforceable.  But  see  Foster  v.  Gt.  Western  Ry. 
Co.,  [1904]  2  K.  B.  306.  In  Joseph  Thorley,  Ltd.,  v.  Orchis  S.  S.  Co..  [1907]  1 
K.  B.  660,  a  deviation  during  the  voyage  was  held  to  render  inapplicable  an 
exemption  from  liability  for  negligence  in  discharging  at  destination. 

In  Internationale  Guano  en  Superphosphaatwerken  v.  ;MacAndrew,  [1909] 
2  K.  B.  360,  deviation  increased  damage  due  to  unfitness  of  the  cargo  for  a 
long  voyage.  No  recovery  was  permitted  for  so  much  of  the  damage,  though 
it  happened  during  deviation,  as  would  have  happened  in  the  same  way  with- 
out deviation. 


Ch.    1)  THE   CONDUCT    OF   TRANSPORTATION.  63 

CROCKER  V.  JACKSON. 

(District  Court.   D.    Massachusetts,  1847.     1   Spr.   141,  Fed.  Cas.   No.  3,398.) 

This  was  a  libel,  on  behalf  of  the  owners  of  the  bark  La  Grange, 
against  the  respondent,  a  consignee  of  part  of  the  cargo,  to  recover  a 
contribution  for  damage  sustained  by  the  voluntary  stranding  of  that 
vessel,  near  Provincetown.  during  a  gale.  The  respondent  was  in- 
sured by  the  Merchants'  Insurance  Company,  and  the  defense  was 
made  in  their  behalf.  The  defense  principally  relied  upon  was  that 
La  Grange  had  previously  committed  a  deviation,  in  going  out  of 
her  course,  to  speak,   and  then  taking  in  tow,  a  vessel  in  distress. 

SpraguE.  District  Judge, ^^  in  delivering  his  opinion,  said,  in  sub- 
stance: Delay  to  save  life  is  not  a  deviation;  but  delay  merely  to  save 
property,  is.     *     *     * 

In  this  case,  when  the  brig  was  seen  in  distress,  it  was  the  duty  of 
the  La  Grange  to  run  down  to  her,  to  ascertain  whether  the  persons  on 
board  needed  relief;  and  upon  learning  that  they  did,  she  was  bound 
to  take  the  necessary  measures  to  afford  it;  and  this  constitutes  no 
deviation.  As  the  sea  and  wind  were  such,  that  the  crew  of  the  brig 
could  not  be  transferred  to  the  La  Grange,  and  both  vessels  were  fast 
drifting  out  of  their  course,  the  taking  of  the  brig  in  tow  was  the  prop- 
er mode  of  relief. 

The  only  serious  question  is,  whether  the  towing  was  continued  too 
long.  It  is  urged  in  behalf  of  the  respondents,  that  the  object  of  the 
captain  of  the  La  Grange  was  pecuniary  gain,  by  earning  salvage. 
But  the  crew  of  the  brig  needed  assistance,  and  it  must  be  presumed 
that  the  master  was  also  actuated  by  a  desire  to  afford  them  relief. 
Now  there  being  a  double  motive,  to  relieve  distress  and  to  save  prop- 
erty, does  not  render  the  delay  a  deviation,  nor  impair  the  merit  of  the 
act.  The  law,  so  far  from  discouraging  the  union  of  these  motives, 
enhances  the  amount  of  salvage  compensation,  where  the  saving  of 
property  is  accompanied  by  relief  to  passengers  or  crew.  But  if  this 
towing  was  continued  after  it  had  ceased  to  be  necessary  to  relieve 
the  distress  of  the  crew,  and  merely  to  save  property,  then  it  was  a 
deviation ;  but  I  am  not  satisfied  that  it  was  so  continued.     *     *     * 

We  should  not  look  at  the  conduct  of  a  master,  in  such  cases,  with 
a  jealous  scrutiny,  nor  give  such  a  construction  to  doubtful  acts,  as 
would  admonish  him  that,  in  order  to  be  safe  from  judicial  condemna- 
tion, he  must  harden  his  heart,  and  stint  the  measure  of  relief  to  dan- 
ger and  distress.  The  humanity  and  morals  of  the  seas  require  a  more 
liberal  doctrine. 

17  The  statement  has  been  shortened,  and  parts  of  the  opinion  have  been 
omitted. 


€4  THE  carrier's  undertakinq.  (Part  2 

Being  of  opinion  that  there  was  no  deviation,  I  have  no  occasion  to 
consider  the  question  made  at  the  bar,  as  to  what  would  have  been  its 
effect. 

Decree  for  the  hbelants,  for  $195.77,  damages  and  costs.^^ 


READ  V.  SPAULDING. 
(Superior  Court  of  City  of  New  Yorli,  1859.     5  Bos.  395.) 

This  was  an  action  against  defendant  as  a  common  carrier  doing 
business  under  the  name  of  Spaulding's  Express  Freight  Line  to  re- 
cover for  damage  to  goods  injured  while  in  course  of  transportation 
by  an  unprecedented  flood.  The  material  facts  were  agreed  upon  by 
the  parties  at  the  trial,  and  the  court  directed  a  verdict  for  plaintiff. 
Defendant  excepted  to  the  action  of  the  court  in  directing  a  verdict, 
and  to  its  refusal  to  nonsuit  the  plaintiff.  The  exceptions  were  argued 
at  General  Term. 

Woodruff,  J.^^  *  *  *  'pj^g  goods,  in  all  consisting  of  eigh- 
ty-six cases,  were  delivered  to  the  defendant  on  the  27th  day  of  Jan- 
uary, 1857,  to  be  carried  and  delivered  to  the  plaintiff  at  Louisville. 
Eighty-one  of  these  cases  were  carried  and  delivered  within  twelve 
■or  fourteen  days  after  they  were  received  in  New  York ;  that  is  to 
say,  they  reached  Louisville  on  the  8th  or  10th  of  February. 

It  was  the  duty  of  the  defendant  to  deliver  all  the  goods  within  a 
reasonable  time,  and  according  to  the  usual  course  of  business  over 
the  route  by  which  they  were  to  be  transported.  There  is  nothing  in 
this  case  to  indicate  that  the  eighty-one  cases  which  were  so  delivered 
were  forwarded  with  any  extraordinary  or  unusual  speed,  but  the 
proof  is  that  from  ten  to  fifteen  days  is  the  usual  time  of  conveyance. 
The  presumption  is,  therefore,  that  if  the  defendant  had  performed 
liis  duty  the  five  cases,  which  are  the  subject  of  controversy,  would 
have  reached  Louisville  at  or  about  the  same  time  with  the  others. 

But  these  five  cases  were  brought  from  the  depot  of  the  Western 
Railroad  to  the  depot  of  the  Central  Railroad,  at  Albany,  on  Saturday, 
the  7th  of  February,  when,  as  before  suggested,  they  ought  to  have 
been  at  or  near  their  destination,  Louisville,  Kentucky.  Whether  this 
delay  arose  from  the  detention  of  the  goods  in  New  York,  or  at  the 
depot  of  the  Western  Railroad,  or  at  any  intermediate  point,  is  not 
stated.  Nor  is  any  explanation  of  the  cause  of  delay  given  or  attempt- 
ed; while  it  is  agreed  that  freight  cars  run  daily  from  New  York  to 
Albany  on  the  road  by  which  these  goods  were  to  leave  New  York. 
If  any  explanation  of  this  delay  could  be  given,  it  was  the  duty  of  the 

18  See.  also,  Scaramanga  v.  Stamp,  5  C.  P.  D.  295  (1880).  In  that  case 
Bramwell,  L.  J.,  said:  "It  is  always  justifiable  to  make  away  witli  property 
in  order  to  save  life.     Mouse's  Case,  12  Rep.  03."       And  see  post,  p.  481,  note. 

19  The  statement  has  been  rewritten,  and  parts  of  the  opinion  have  been 
omitted. 


Ch.    1)  THE   CONDUCT  OF  TRANSPORTATION.  65 

defendant  to  give  it.  Enough  was  shown  to  cast  the  burden  of  proof 
upon  him.  He  had  undertaken  to  carry,  and  the  delay  was,  prima  fa- 
cie, not  only  unreasonable,  but  apparently  the  result  of  gross  negli- 
gence and  want  of  attention,  either  in  not  beginning  the  carriage  in 
due  time  or  in  delaying  the  progress  of  the  goods  after  the  transpor- 
tation was  begun.  It  is  not  for  the  defendant  to  require  that  the  plain- 
tiffs should  show  the  cause  of  the  delay. 

The  resirlt  is  that  the  defendant  was  grossly  negligent  in  the  per- 
formance of  his  duty ;  this  delay  was  a  breach  of  his  contract  to  carry 
and  deliver  within  a  reasonable  time;  and  while  so  in  fault,  the  goods 
in  his  charge  were,  in  the  night  of  Sunday,  the  8th,  or  on  the  morning 
of  the  9th  of  February,  reached  and  injured  by  the  extraordinary  flood 
already  mentioned. 

But  the  defendant  insists  that,  if  the  defendant  was  in  fault  in  re- 
spect of  the  delay  which  had  occurred,  he  is,  nevertheless,  not  liable 
for  the  damage  complained  of;  that,  in  such  case,  though  the  carrier 
be  liable  for  delay,  he  is  only  liable  for  the  immediate  consequences 
of  delay :  by  which  he  is  understood  to  claim  that  he  is  liable  only  for 
such  damages  as  the  plaintiffs  sustained  irrespective  of  the  injury  to 
the  goods  by  being  wet  in  the  flood  at  Albany;  and,  therefore,  his 
damages  are  to  be  ascertained  by  assuming,  for  the  purposes  of  the 
assessment,  that  the  goods  arrived  safely,  though  not  until  long  after 
the  time  wben  they  should  have  been  delivered. 

This  claim  rests  upon  the  ground  that  the  delay  was  not  the  proxi- 
mate cause  of  the  injury.    "Causa  proxima  non  remota  spectatur." 

The  delay  certainly  did  not  cause  the  flood.  But  we  think  that  the 
defendant  cannot  find  protection  in  this  view  of  his  responsibility. 
His  unexcused  neglect  of  duty  did  expose  the  goods  to  the  peril ;  and 
when  the  defendant  was  found  in  actual  fault,  he  lost  the  protection 
from  liability  by  inevitable  accident  which  the  law  extends  to  the  car- 
rier in  the  due  performance  of  his  undertaking.  From  the  moment  his 
faulty  negligence  began,  he  became  an  insurer  against  the  conse- 
quence which  might  result  therefrom,  whether  ordinary  or  extraordi- 
nary. 

It  is  true  that,  in  Morrison  v.  Davis,  20  Pa.  171,  57  Am.  Dec.  695 
[reported  in  the  district  court  under  the  name  of  Morrison  v.  ]\IcFad- 
den,  post,  p.  353],  where  goods  carried  in  a  canal  boat  were  injured  by 
the  wrecking  of  the  boat  caused  by  an  extraordinary  flood,  it  was  held 
that  the  carriers  were  not  rendered  liable  merely  by  the  fact  that,  when 
the  boat  was  started  on  its  voyage,  one  of  the  horses  attached  to  it  was 
lame,  and  that,  in  consequence  thereof,  such  delay  occurred  as  pre- 
vented the  boat  from  passing  the  place  where  the  accident  happened, 
beyond  which  place  it  would  have  been  safe.  In  considering  the  ques- 
tion, the  court  liken  the  carrier  to  an  insurer  against  loss  by  perils  of 
the  seas,  who  are  said  to  be  not  liable  for  a  loss  immediately  arising 
from  another  cause,  although,  by  perils  of  the  sea,  the  ship  had  sus- 
Green  Cake.— 5 


66  THE  carriek's  undertaking.  (Part  2 

tained  an  injury  without  which  the  loss  would  not  have  taken  place. 

Possibly  a  question  might  be  suggested  whether,  in  that  case,  the 
mere  fact  that  one  of  the  horses  was  lame  was  enough  to  charge  the 
defendants;  but  it  must  be  conceded  that,  in  the  view  taken  by  the 
court,  the  case  is  strikingly  like  the  present.  We  are,  nevertheless, 
constrained  to  say  that,  in  so  far  as  the  principle  of  the  decision  tends 
to  exonerate  the  present  defendant,  we  cannot  give  it  our  assent. 

A  common  carrier,  in  order  to  claim  exemption  from  hability  for 
damage  done  to  goods  in  his  hands  in  course  of  transportation,  though 
injured  by  what  is  deemed  the  act  of  God,  must  be  without  fault  him- 
self. His  act  or  neglect  must  not  concur  and  contribute  to  the  injury. 
If  he  departs  from  the  line  of  duty  and  violates  his  contract,  and  while 
thus  in  fault,  and  in  consequence  of  that  fault,  the  goods  are  injured 
by  the  act  of  God,  which  would  not  otherwise  have  caused  damage, 
he  is  not  protected. 

The  defendant  was  bound  to  deliver  the  goods  in  a  sound  condition. 
If  prevented  by  the  act  of  God,  he  is  excused ;  but  if  his  own  miscon- 
duct contributed  to  the  injury  by  exposing  the  goods  needlessly  or  im- 
properly to  the  peril,  his  excuse  fails.  All  ordinary  perils  from  even 
the  act  of  God  he  was,  even  while  engaged  in  the  faithful  performance 
of  his  duty,  bound  to  foresee  and  guard  against  by  the  exercise  of  a 
care  and  diligence  proportioned  to  the  danger.  He  was  not  bound  to 
anticipate  and  guard  against  extraordinary  perils  which  human  fore- 
sight would  not  anticipate ;  but  it  was  his  duty  to  do  nothing  which 
should  expose  the  goods  to  any  perils  which  would  not  arise  in  the 
proper  and  diligent  prosecution  of  the  journey  which  he  had  under- 
taken. And  if  he,  by  needless  delay,  subjected  the  goods  to  damage, 
from  whatever  cause  concurring  or  cooperating  therein,  he  is  liable. 

This  we  believe  to  be  in  accordance  with  sound  policy,  just  in  its 
operation,  and  sustained  by  the  weight  of  authority. 

Thus,  if  a  carrier  by  water  deviates  from  his  voyage  and  the  ship 
and  goods  are  lost,  he  is  liable,  although  the  loss  was  by  a  peril  of  the 
sea.  He  is  not  at  liberty  improperly  to  encounter  mischief,  even  from 
such  a  cause.  In  principle,  it  can  make  no  difference  whether  his  de- 
viation is  intentional  or  negligent;  it  is  sufficient  that  he  is  in  fault, 
and  that  subjects  him  to  liability. 

So,  where  a  carrier  by  land  deviated  from  the  direct  and  principal 
route,  and  the  goods  were  lost  by  a  cause  which  might,  had  he  been 
without  fault,  have  excused  him  on  the  score  of  inevitable  accident, 
he  was  held  liable  because  the  loss  happened  in  consequence  of  his 
own  improper  conduct;    he  had  no  right  so  to  deviate.     *     *     * 

The  plaintiff  should  have  judgment  on  the  verdict.  Ordered  ac- 
cordingly.^" 

2  0  Affirmed  30  N.  Y.  630,  86  Am.  Dec.  426  (1864). 

Delay  in  the  prosecution  of  a  voyage  may  be  such  that,  like  a  deviation 
from  tie  course  of  the  voyage,  it  discharges  underwriters. 

"The  single  point  before  the  court  is  whether  there  has  not  been  what  is 


Ch,  1)  THE  CONDUCT  OF  TRANSPORTATION,  67 

SECTION  5.— SEAWORTHINESS. 


CONSULATE  OF  THE  SEA,  c.  23:  If  goods  be  damaged  by 
rats,  and  there  is  no  cat  on  board  the  ship,  the  managing  owner  of  the 
ship  ought  to  make  compensation ;  but  it  has  not  been  declared  in  the 
case  where  a  ship  has  had  cats  on  board  in  the  place  where  she  was 
laden,  and  after  she  had  sailed  away  the  said  cats  have  died,  and  the 
rats  have  damaged  the  goods  before  the  ship  has  arrived  at  a  place 
where  they  could  procure  cats;  if  the  managing  owner  of  the  ship 
shall  buy  cats  and  put  them  on  board  as  soon  as  they  arrive  at  a  place, 
where  they  can  find  them  for  sale  or  as  a  gift  or  can  get  them  on 
board  in  any  manner,  he  is  not  bound  to  make  good  the  said  losses 
for  they  have  not  happened  through  his  default. 


THE  CALEDONIA. 

(Supreme  Court  of  the  United  States.  1895.    157  U.  S.  124,  15  Sup.  Ct.  537,  39 

L.  Ed.  644.) 

This  was  an  appeal  from  a  decree  of  the  Circuit  Court  affirming 
a  decree  of  the  District  Court  against  the  steamship  Caledonia  in  a 
suit  in  admiralty  brought  by  a  shipper  of  cattle  to  recover  damages 

equivalent  to  a  deviation,  whetlier  the  risli  has  not  been  varied,  no  matter 
whether  the  rislc  lias  or  has  not  been  thereby  increased."  Lord  Mansfield,  in 
Hartley  v.  Bupgin,  1  Park.  Ins.  513  (1781),  quoted  by  Tindal,  C.  J.,  in  Mount 
V.  Larkins.  8  Bing.  108  (1831). 

"Unquestionably,  an  idle  waste  of  time,  after  a  vessel  has  completed  the 
purposes  for  which  she  entered  a  port,  is  a  deviation  which  discharges  the 
underwriters."  ^larshall,  C.  J.,  in  Oliver  v.  Maryland  Ins.  Co.,  7  Cranch,  487, 
3  L.  Ed.  414  (1813). 

"The  assured  has  no  right  to  substitute  a  different  voyage  for  that  which 
is  insured,  and  can  only  recover  for  a  loss  sustained  while  the  ship  is  prosecut- 
ing the  voyage  named  "in  the  policy ;  and  if  she  has  deviated  prior  to  the  loss, 
she  is  not  then  prosecuting  the  voyage  for  which  she  was  insured.  Whenever, 
therefore,  she  departs  from  the  route,  or  delays  in  the  prosecution  of  it,  it 
is  Incumbent  on  the  assured  to  show  that  the  departure  was  caused  by  neces- 
sity, or  that  the  delay  at  a  port  named  in  the  policy  was  reasonable  luider  the 
circumstances  in  order  to  accomplish  the  objects  of  the  voyage."  Endicott,  J., 
in  Amsinck  v.  American  Ins.  Co.,  129  Mass.  185  (1880). 

"If  a  master  shall  weigh  anchor,  and  stand  out  to  his  voyage  after  the  time 
covenanted  or  agreed  on  for  his  departure,  if  any  damage  happens  at  sea  after 
that  time,  he  shall  refund  and  make  good  all  such  misfortune."  Molloy,  De 
Jure  Maritime,  bk.  II,  e.  4.  §  6. 

The  following  cases  hold  that  willful  delay,  like  deviation,  renders  a  car- 
rier liable  even  for  loss  by  act  of  God:  Michaels  v.  N.  Y.  Cent.  R.  Co.,  30  N.  Y. 
564,  86  Am.  Dec.  415  (1864) ;  Bibb  Broom  Corn  Co.  v.  Atchison,  etc.,  R.  Co., 
94  Minn.  269,  102  N.  W.  709,  69  L.  R.  A.  509,  110  Am.  St.  Rep.  361  (1905); 
Green-Wheeler  Shoe  Co.  v.  Chicago,  etc.,  R.  Co.,  130  Iowa,  126,  106  N.  W. 
498,  5  L.  R.  A.  (N.  S.)  882  (1906)  hegligent  delay;  Alabama  Gt.  So.  R.  Co. 
V.  Quarles,  40  South.  120,  145  Ala.  436,  5  L.  R.  A.  (N.  S.)  867,  117  Am.  St. 


68  THE  carrier's  undertaking.  (Part  2 

caused  by  the  prolongation  of  the  voyage  due  to  the  breaking  of  the 
vessel's  shaft  at  sea.  The  Circuit  Court  found  that  libelant,  at  Boston, 
shipped  cattle  on  board  the  Caledonia,  employed  as  a  common  carrier, 
to  be  transported  to  Deptford,  a  voyage  usually  of  about  thirteen  days. 
When  nine  days  out,  the  propeller  shaft  broke,  because  it  had  been 
weakened  by  heavy  seas  on  previous  voyages.  At  the  time  of  leaving 
Boston,  it  was  in  fact  unfit  for  the  voyage,  and  the  vessel  was  unsea- 
worthy  in  consequence.  No  defect  in  the  shaft  was  visible  or  could 
have  been  detected  by  usual  and  reasonable  means  if  the  shaft  had 
been  taken  out  and  examined.  No  negligence  of  the  carrier  was 
proved. 

Because  of  the  breaking  of  the  shaft,  the  voyage  was  prolonged  to 
twenty-five  days,  the  cattle  were  put  on  short  allowance  of  food  and 
.landed  in  an  emaciated  condition.  The  libelant,  as  the  carrier  knew, 
shipped  his  cattle  for  the  purpose  of  selling  them  on  arrival.  Because 
of  the  delay  they  sold  for  $7,850  less  than  they  would  otherwise  have 
brought.  Half  of  this  loss  was  due  to  their  shrinkage  in  weight;  half 
to  a  fall  in  the  price  of  cattle  during  the  delay. 

The  Circuit  Court  held  the  steamship  liable  for  the  entire  loss  be- 
cause of  her  unseaworthiness. 

Fuller,  C.  J.=^^  In  The  Edwin  I.  Morrison,  153  U.  S.  199,  210,  14 
Sup.  Ct.  823,  38  L.  Ed.  G88,  the  language  of  Mr.  Justice  Gray,  deliv- 
ering the  opinion  of  the  Circuit  Court  in  the  present  case,  was  quoted 

Rep.  54  (190G);  Ala.  Ot.  So.  R.  Co.  v.  Elliott  150  Ala.  381,  43  South.  738,  9 
L.  R.  A.  (N.  S.)  12G4.  124  Am.  St.  Rep.  172  (1907) ;  Wabash  R.  Co.  v.  Sharpe. 
76  Neb.  424,  107  N.  W.  7.58,  124  Am.  St.  Rep.  823  (1906).  To  the  same  effect 
are  Cassilav  v.  Young,  4  B.  Mon.  (Ky.)  265.  39  Am.  Dec.  505  (1843)  :  Wald  v. 
Pittsburg,  etc..  R.  Co.,  162  111.  545,  44  N.  E.  8SS,  35  L.  R.  A.  356.  53  Am.  St. 
Rep.  332  (1896) ;  The  Citta  di  Messina  (D.  C.)  169  Fed.  472  (1909).  Contra: 
International,  etc.,  R.  Co.  v.  Bergman  (Tex.  Civ.  App.)  64  S.  W.  999  (1901); 
Gulf,  etc.,  Rv.  Co.  v.  Darbv,  28  Tex.  Civ.  App.  229,  67  S.  W.  129  (1902);  Hunt 
V.  Mo.,  K.  &  T.  Ry.  Co.  (Tex.  Civ.  App.)  74  S.  W.  69  (1903)  ;  Herring  v. 
Chesapeake  &  W.  R.  Co..  101  Ya.  778.  45  S.  E.  322  (1903) ;  ^Sloffatt  Com.  Co. 
v.  Union  Pac.  R.  Co.,  113  Mo.  App.  544.  88  S.  W.  117  (190.5) ;  Empire  State 
Cattle  Co.  T.  Atchison,  etc.,  R.  Co.  (C.  C.)  135  Fed.  1.35  (1905);  Rodgers  v.  Mo. 
Pac.  Ry.  Co.,  75  Kan.  222,  88  Pac.  885,  10  L.  R.  A.  (N.  S.)  658.  121  Am.  St.  Rep. 
416  (1907).  See,  also.  Denny  v.  N.  Y.  Cent.  R.  Co..  13  Gray  (Mass.)  481,  74  Am. 
Dec.  645  (1859);  Railroad  Co.  v.  Reeves,  10  Wall.  176,  19  L.  Ed.  909  (1869); 
Morrison  v.  Davis,  post,  p.   355,  note. 

That  willful  delay,  like  deviation,  invalidates  exemptions  in  a  bill  of  lading 
was  held  in  Condict  v.  Grand  Trunk  R.  Co.,  54  N.  Y.  500  (1873) ;  Herusheim 
v.  Newport  News,  etc.,  Co.,  35  S.  W.  1115,  18  Ky.  Law  Rep.  227  (1896) ;  Louis- 
ville &  N.  R.  Co.  V.  Gidley,  119  Ala.  523.  24  South.  753  (1898).  Contra:  Hoad- 
ley  V.  Northern  Trans.  Co.,  115  Mass.  304,  15  Am.  Rep.  106  (1874) ;  Davis  v. 
Central  Vt.  R.  Co.,  66  Vt.  290.  29  Atl.  313,  44  Am.  St.  Rep.  8.52  (1893).  And  see 
Reid  V.  Evansville  R.  Co.,  10  Ind.  App.  385.  35  N.  E.  703,  53  Am.  St.  Rep.  391 
(1893);  Yazoo  R.  Co.  v.  Millsaps,  76  Miss.  85.5,  25  South.  672,  71  Am.  St.  Rep. 
543  (1899) ;    Extinguisher  Co.  v.  Railroad,  137  N.  C.  278,  49  S.  E.  208  (1904). 

For  discussions  of  the  subject,  see  Hutchinson  on  Carriers  (3d  Ed.)  §§  297- 
308;  MeClain,  C.  J.,  in  Green-Wheeler  Shoe  Co.  v.  Chicago,  etc.,  R.  Co.,  130 
Iowa.  123,  106  N.  W.  498.  5  L.  R.  A.  (N.  S.)  882  (1900),  cited  supra ;  Rodgers  v. 
Mo.  Pac.  Ry.  Co.,  cited  supra.  , 

21  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinions 
•omitted. 


Ch.   1)  THE    CONDUCT   OF   TRANSPORTATION.  69 

with  approval,  to  this  effect :  "In  every  contract  for  the  carriage  of 
goods  by  sea,  unless  otherwise  expressly  stipulated,  there  is  a  war- 
ranty on  the  part  of  the  shipowner  that  the  ship  is  seaworthy  at  the 
time  of  beginning  her  voyage,  and  not  merely  that  he  does  not  know 
her  to  be  unseaworthy,  or  that  he  has  used  his  best  efforts  to  make  her 
seaworthy.  The  warranty  is  absolute  that  the  ship  is,  or  shall  be,  in 
fact  seaworthy  at  that  time,  and  does  not  depend  on  his  knowledge  or 
ignorance,  his  care  or  negligence." 

After  renewed  consideration  of  the  subject,  in  the  light  of  the  able 
arguments  presented  at  the  bar,  we  see  no  reason  to  doubt  the  correct- 
ness of  the  rule  thus  enunciated. 

The  proposition  that  the  warranty  of  seaworthiness  exists  by  impli- 
cation in  all  contracts  for  sea  carriage  we  do  not  understand  to  be  de- 
nied ;  but  it  is  insisted  that  the  warranty  is  not  absolute,  and  does  not 
cover  latent  defects  not  ordinarily  susceptible  of  detection.  If  this 
were  so,  the  obligation  resting  on  the  shipowner  would  be,  not  that 
the  ship  should  be  fit,  but  that  he  had  honestly  done  his  best  to  make 
her  so.    We  cannot  concur  in  this  view. 

In  our  opinion,  the  shipowner's  undertaking  is  not  merely  that  he 
will  do  and  has  done  his  best  to  make  the  ship  fit,  but  that  the  ship 
is  really  fit  to  undergo  the  perils  of  the  sea  and  other  incidental  risks 
to  which  she  must  be  exposed  in  the  course  of  the  voyage ;  and,  this 
being  so.  that  undertaking  is  not  discharged  because  the  want  of  fit- 
ness is  the  result  of  latent  defects. 

The  necessity  of  this  conclusion  is  made  obvious  when  we  consider 
the  settled  rule  in  respect  of  insurance,  for  it  is  clear  that  the  under- 
taking as  to  seaworthiness  of  the  shipowner  to  the  shipper  is  coexten- 
sive with  that  of  the  shipper  to  his  insurer. 

That  rule  is  thus  given  by  Parsons  (1  Mar.  Ins.  367)  :  "Every  per- 
son who  proposes  to  any  insurers  to  insure  his  ship  against  sea  perils, 
during  a  certain  voyage,  impliedly  warrants  that  his  ship  is,  in  every 
respect,  in  a  suitable  condition  to  proceed  and  continue  on  that  voyage, 
and  to  encounter  all  common  perils  and  dangers  with  safety.  *  *  * 
This  warranty  is  strictly  a  condition  precedent  to  the  obligation  of  in- 
surance; if  it  be  not  performed,  the  policy  does  not  attach;  and,  if 
this  condition  be  broken  at  the  inception  of  the  risk,  in  any  way  what- 
ever and  from  any  cause  whatever,  there  is  no  contract  of  insurance, 
the  poHcv  being  wholly  void." 

In  Kopitoff  V.  Wilson,  1  Q.  B.  D.  3:7,  379.  381,  although,  as  there 
was  no  necessity  to  consider  the  law  as  to  latent  defects,  whether  such 
defects  would  constitute  an  exception  cannot  be  said  to  have  been  pass- 
ed on,  the  general  rule  was  laid  down  as  we  have  stated  it,  and  the  ex- 
istence of  the  warranty  in  question  on  the  part  of  a  shipowner  was 
asserted  with  reference  to  his  character  as  such,  and  not  as  existing 
only  in  those  cases  in  which  he  is  also  acting  as  a  carrier.  That  was 
an  action  in  which  the  plaintiff  sought  to  recover  damages  for  the  loss 
of  a  large  number  of  weighty  iron  armor  plates  and  bolts,  one  of  the 


70  THE   carrier's   UNDERTAKING.  (Part  2 

plates  having  broken  loose  and  gone  through  the  side  of  the  ship, 
which,  in  consequence,  went  down  in  deep  water  and  was  totally  lost 
with  all  her  cargo.  The  case  was  tried  before  Blackburn,  J.,  who  told 
the  jury  as  matter  of  law  that  the  shipowner  warranted  the  fitness  of 
his  ship  when  she  sailed,  and  not  merely  that  he  had  honestly  and  in 
good  faith  endeavored  to  make  her  fit,  and  left  the  following  questions 
to  the  jury:  "Was  the  vessel  at  the  time  of  her  sailing  in  a  state,  as 
regards  the  stowing  and  receiving  of  these  plates,  reasonably  fit  to  en- 
counter the  ordinary  perils  that  might  be  expected  on  a  voyage  at  that 
season  from  Hull  to  Cronstadt?  Second.  If  she  was  not  in  a  fit  state, 
was  the  loss  that  happened  caused  by  that  unfitness?" 

The  rule  for  new  trial  was  discharged  in  view  of  the  warranty  by 
implication  that  the  ship  was  in  a  condition  to  perform  the  voyage  then 
about  to  be  undertaken,  and  Field,  J.,  among  other  things,  said:  "It 
appears  to  us,  also,  that  there  are  good  grounds  in  reason  and  common 
sense  for  holding  such  to  be  the  law.  It  is  well  and  firmly  established 
that  in  every  marine  policy  the  assured  comes  under  an  implied  war- 
ranty of  seaworthiness  to  his  assurer,  and,  if  we  were  to  hold  that  he 
has  not  the  benefit  of  a  similar  implication  in  a  contract  which  he 
makes  with  a  shipowner  for  the  carriage  of  his  goods,  the  consequence 
would  be  that  he  would  lose  that  complete  indemnity  against  risk  and 
loss  which  it  is  the  object  and  purpose  to  give  him  by  the  two  con- 
tracts taken  together.  Holding  as  we  now  do,  the  result  is  that  the 
merchant,  by  his  contract  with  the  shipowner,  having  become  entitled 
to  have  a  ship  to  carry  his  goods  warranted  fit  for  that  purpose,  and  to 
meet  and  struggle  against  the  perils  of  the  sea,  is,  by  his  contract  of 
assurance,  protected  against  the  damage  arising  from  such  perils  act- 
ing upon  a  seaworthy  ship." 

This  was  the  view  expressed  by  Mr.  Justice  Brown,  then  District 
Judge,  in  The  Eugene  Vesta  (D.  C.)  28  Fed.  762,  T63,  in  which  he 
said :  "There  can  be  no  doubt  that  there  is  an  implied  warranty  on  the 
part  of  the  carrier  that  his  vessel  shall  be  seaworthy,  not  only  when  she 
begins  to  take  cargo  on  board,  but  when  she  breaks  ground  for  the 
voyage.  The  theory  of  the  law  is  that  the  implied  warranty  of  sea- 
worthiness shall  protect  the  owner  of  the  cargo  until  his  policy  of  in- 
surance commences  to  run ;  and,  as  it  is  well  settled  that  the  risk  under 
the  policy  attaches  only  from  the  time  the  vessel  breaks  ground,  this  is 
fixed  as  the  point  up  to  which  the  warranty  of  seaworthiness  extends." 
And  the  case  of  Cohn  v.  Davidson,  2  Q.  B.  D.  455,  461,  was  cited,  where 
it  appeared  that  the  ship  was  not  in  fact  seaworthy  at  the  time  she  set 
sail,  but  that  as  she  was  found  to  be  seaworthy  at  the  time  she  com- 
menced to  take  cargo,  she  must  have  received  the  damage  in  the  course 
of  loading;  and  Field,  J.,  observed  that  "no  degree  of  seaworthiness 
for  the  voyage  at  any  time  anterior  to  the  commencement  of  the  risk 
will  be  of  any  avail  to  the  assured,  unless  that  seaworthiness  existed  at 
the  time  of  sailing  from  the  port  of  loading.  As,  therefore,  the  mer- 
chant in  a  case  like  the  present  would  not  be  entitled  to  recover  against 


Ch.  1)  THE    CONDUCT    OF   TRANSPORTATION.  71 

his  underwriter  by  reason  of  the  breach  of  warranty  in  saiHng  in  an 
unsea worthy  ship,  it  would  follow  that,  if  the  warranty  to  be  implied 
on  the  part  of  the  shipowner  is  to  be  exhausted  by  his  having  the  ship 
seaworthy  at  an  anterior  period,  the  merchant  would  lose  that  complete 
indemnity,  by  means  of  the  two  contracts  taken  together,  which  it  is 
the  universal  habit  and  practice  of  mercantile  men  to  endeavor  to  se- 
cure." 22     *     *     * 

It  is  urged  that  doubt  is  thrown  upon  the  doctrine  by  the  reasoning 
in  Readhead  v.  Railroad  Co.,  L.  R.  4  Q.  B.  379,  L.  R.  2  Q.  B.  412. 
There  a  passenger  sought  to  charge  a  common  carrier  for  an  injury 
occasioned  by  the  breaking  of  an  axle  by  reason  of  a  hidden  flaw ;  and 
the  court  of  exchequer  chamber  held  that  a  contract  made  by  a  gen- 
eral carrier  of  passengers  for  hire  with  a  passenger  is  to  take  due  care 
(including  in  that  term  the  use  of  skill  and  foresight)  to  carry  the 
passenger  safely,  and  is  not  a  warranty  that  the  carriage  in  which  he 
travels  shall  be  free  from  all  defects  likely  to  cause  peril,  although 
those  defects  were  such  that  no  skill,  care,  or  foresight  could  have  de- 
tected their  existence.  But  the  court  was  careful  to  point  out  the 
broad  distinction  between  the  liabilities  of  common  carriers  of  goods 
and  of  passengers,  and  in  the  case  at  bar  the  shipowner  was  not  only 
liable  as  such,  but  as  a  common  carrier,  and  subject  to  the  responsibil- 
ities of  that  relation. 

That  case  was  decided  in  18G9,  and  those  of  The  Glenfruin  [10 
Prob.  Div.  103]  and  The  Laertes  [13  Prob.  Div.  187]  in  1885  and 
1887 ;  yet  the  latter  rulings  seem  to  have  been  accepted  without  ques- 
tion, and  were  certainly  unaffected  by  any  attempt  to  apply  a  rule  in 
respect  of  roadworthiness  in  the  carriage  of  passengers  by  a  railroad 
to  the  warranty  of  seaworthiness  in  the  carriage  of  goods  by  a  ship. 

In  our  judgment,  the  circuit  court  rightly  held  that  the  warranty 
was  absolute  ;  that  the  Caledonia  was  unseaworthy  when  she  left  port ; 
and  that  that  was  the  cause  of  the  damage  to  libelant's  cattle.^* 
*     *     * 

Decree  affirmed. 

Brown,  J.,  with  whom  concurred  Harlan  and  Brewer,  JJ.  (dis- 
senting). *  *  *  Conceding,  for  the  purposes  of  this  case,  that 
under  the  stringent  rule  laid  down  by  this  court  in  Richelieu  &  O. 
Nav.  Co.  V.  Boston  Marine  Ins.  Co.,  136  U.  S.  408,  428,  10  Sup.  Ct. 
934,  34  L.  Ed.  398,  and  The  Edwin  I.  Morrison,  153  U.  S.  199,  14 
Sup.  Ct.  823,  38  L.  Ed.  688,  the  carrier  is  bound  to  respond  for 
any  loss  of  or  direct  damage  to  goods  in  consequence  of  a  breach  of 
his  implied  warranty  of  seaworthiness,  whether  such  unseaworthiness 
were  known  or  unknown,  discoverable  or  undiscoverable,  it  does  not 
necessarily  follow  that  he  is  subject  to  the  same  measure  of  liability 

2  2  The  learned  judge  here  reviewed  other  authorities. 

23  The  rest  of  the  opinion  deals  with  the  provisions  of  the  bill  of  lading, 
which  are  construed  as  not  intended  to  affect  liability  fer  unseaworthiness, 
and  with  the  question  of  damages. 


72  THE  carrier's  undertaking.  (Part  2 

for  damages  occasioned  by  mere  delay  in  making  the  voyage  within 
the  usual  time. 

All  the  cases  cited  in  the  opinion  of  the  court  are  those  wherein 
either  the  ship  or  the  cargo  has  suffered  loss  or  direct  damage  by  rea- 
son of  her  unseaworthiness  at  the  commencement  of  the  voyage.  Both 
in  this  court  and  in  the  court  below  the  case  is  treated  as  one  involv- 
ing the  liability  of  the  carrier  as  an  insurer  of  the  goods  in  question. 
The  authorities,  however,  make  a  clear  distinction  between  the  loss  of 
or  direct  damage  to  goods  on  account  of  unseaworthiness  and  the  con- 
sequences of  mere  delay.  In  the  one  case  the  contract  is  to  deliver  the 
goods  at  all  events,  the  acts  of  God  and  the  perils  of  the  sea  alone  ex- 
cepted. In  the  other,  it  is  to  use  all  reasonable  exertions  to  carry  the 
goods  to  the  port  of  destination  within  the  usual  time.     *     *     * 

As  it  is  admitted  in  this  case  that  the  delay  was  occasioned  by  a  de- 
fect in  the  ship,  which  could  not  have  been  discovered  by  the  ordinary 
methods  of  inspection,  it  seems  to  me  clear  that  the  carrier  should  not 
be  held  responsible.  If  it  be  said  that  the  damages  in  this  case  were 
the  direct  consequences  of  the  breach  of  warranty  of  seaworthiness, 
the  reply  is  that  for  such  damages  the  ship  is  not  responsible,  provided 
her  owner  has  used  due  diligence  to  make  her  seaworthy,  although, 
if  the  goods  had  been  lost  or  destroyed,  he  would  have  been  liable  as 
insurer.^*     *     *     * 

2  4  An  insured  cargo  owner  is  not  completely  protected  by  ttie  warranty  of 
seawortliiness.  for  unseaworthiness  vitiates  a  policy  of  insurance,  though  it 
has  no  connection  with  the  loss.  London  Assurance  v.  Companhia  de  Moagens, 
167  U.  S.  149,  1G7,  17  Sup.  Ct.  785,  42  L.  Ed.  113  (1807).  But  it  renders  the 
carrier  liable  only  for  a  loss  to  which  it  contributes  as  a  cause.  Hart  v. 
Allen,  2  Watts  (Pa.)  114  (1833);  The  Planter,  2  Woods,  490,  Fed.  Cas,  No. 
11,207a  (1874). 

There  is  no  warranty  of  seaworthiness  in  the  maritime  carriage  of  passen- 
gers. The  Nederland,  7  Fed.  926  (1881) ;  nor  does  a  carrier  of  passengers  or  of 
goods  warrant  the  fitness  of  vehicles  for  carriage  by  land.  See  Readhead 
V.  Midland  Ry.  Co..  L.  R.  4  Q.  B.  379,  383  (1869) ;  Ingalls  v.  Bills,  9  Mete. 
(Mass.)  1,  43  Am.  Dec.  346  (1845). 

The  warranty  of  seaworthiness  exists,  though  the  ship  is  a  private  carrier. 
The  Planter,  2  Woods,  490,  Fed.  Cas.  No.  11,207a  (1874).  It  extends  to  equip- 
ment. A  vessel  may  be  unseaworthy  for  lack  of  a  comjtetent  crow.  The  Giles 
Loring  (D.  C.)  48  Fed.  463  (1890).  It  is  not  confined  to  the  fitness  of  the  ves- 
sel to  make  the  voyage  in  safety  to  herself.  She  is  unseaworthy,  if  her  con- 
dition is  likely  to  damage  her  cargo.  Thus  a  vessel  carrying  meat  may  be 
unseaworthy  because  of  defect  in  her  refrigerating  apparatus.  The  South- 
wark,  191  U.  S.  1,  24  Sup.  Ct.  1,  48  L.  Ed.  65  (1903).  But  it  seems  that  the 
warranty  is  not  of  absolute  fitness,  and  that  a  vessel  is  seaworthy,  when  com- 
petent persons  who  knew  her  condition  would,  according  to  existing  knowl- 
edge and  usages,  deem  her  fit  for  the  voyage,  although  subsequent  experience 
would  recommend  additional  precautions.  The  Titan ia  (D.  C.)  19  Fed.  101 
(1883). 


Ch.   1)  THE   CONDUCT   OF   TRANSPORTATION.  73^ 

SECTION  6.— CARE  OF  GOODS  AND  PASSENGERS 


TABLE  OF  AAIALFI,  art.  44:  The  master  of  a  ship  is  bound, 
whenever  he  loses  anything  out  of  the  ship,  *  =■'  *  to  run  and  ex- 
ert himself  to  the  utmost  of  his  power  to  recover  the  whole  of  that 
which  he  has  lost. 


CONSULATE  OF  THE  SEA,  c.  16:  If  you  wish  to  know  what 
are  the  duties  of  the  managing  owner  of  a  ship  or  vessel  towards  the 
merchants  you  may  learn  it  here.  The  managing  owner  of  a  ship  is 
bound  to  protect  and  guard  the  merchants  and  the  passengers  -^  and 
every  person  who  sails  in  the  ship,  equally  whether  he  be  of  high  or 
low  degree,  and  to  assist  him  to  the  utmost  of  his  power  against  all 
men,  and  to  defend  him  against  corsairs  and  all  persons  who  would 
do  him  harm.  Besides  the  managing  owner  of  the  ship  is  bound  to 
keep  from  harm  all  his  goods  and  effects,  and  to  protect  and  guard 
them  as  above  said.  And  he  ought  to  make  the  ship's  mate  and  the 
officers  of  the  forecastle  and  the  part  owners  and  the  mariners  and  all 
those  who  receive  wages  from  the  ship  swear  that  they  will  help  to 
save  and  guard  the  merchants  and  their  effects  and  the  eff'ects  of  all 
on  board  the  ship  to  the  utmost  of  their  power ;  still  further  that  they 
will  not  disclose  the  secrets  of  any  one,  nor  provoke  a  dispute,  nor 
commit  a  theft,  nor  make  a  quarrel  against  any  of  the  above-mentioned 
persons ;  and  further  that  they  will  not  take  ashore  nor  put  on  board 
anything  by  night  or  by  day,  which  the  ship's  mate  or  the  man  of  the 
watch  does  not  know  of. 


NOTARA  V.  HENDERSON. 

(Court  of  Exchequer  Chamber,  1872.    L.  R.  7  Q.  B.  22.".) 

WiLLES,  J.-^  This  is  an  action  by  the  shippers  of  beans  on  board 
a  steamship  called  the  Trojan,  for  a  voyage  from  Alexandria  to  Glas- 
gow, against  the  shipowners,  for  an  alleged  neglect  of  the  master  to 
take  reasonable  care  of  the  beans  by  drying  them  at  Liverpool,  into 
which  port  the  vessel  was  driven  for  repairs,  by  an  accident  of  the  sea, 
from  the  direct  and  proximate  effect  of  which  the  beans  were  wetted, 
and  from  the  remote  effects  of  which,  for  want  of  drying,  they  were 
further  seriously  damaged.     *     *     *     The  shippers  do  not  claim  in 

2  5  "The  term  'passenger'  includes  all  who  ought  to  pay  freight  for  their 
persons  apart  from  their  merchandise."    Consulate  of  the  Sea,  c.  1. 
2  6  Parts  of  the  opinion  are  omitted. 


74  THE  carrier's  undertaking.  (Part  2 

respect  of  the  damage  necessarily  caused  by  the  colHsion  and  its  un- 
avoidable results,  but  only  for  the  estimated  aggravation  of  that  dam- 
age by  reason  of  nothing  having  been  done  in  the  way  of  drying  to 
arrest  or  mitigate  decomposition,  and  for  that  amount  (£666  Is.  od.) 
they  obtained  judgment  in  the  Court  of  Queen's  Bench. 

Upon  that  juflgment  the  shipowners  have  assigned  error,  alleging 
that  they  were  entitled  to  retain  and  take  on  the  beans  in  their  wet 
state,  and  were  not  bound  to  do  anything  to  check  the  damage  occa- 
sioned by  the  collision.     *     *     * 

That  a  duty  to  take  care  of  the  goods  generally  exists  cannot  be 
doubted;  and  the  question  raised  is,  whether  it  extends  to  incurring 
expense  and  trouble  in  preserving  the  cargo  from  destruction  or  seri- 
ous deterioration  from  the  consequences  of  sea  accident,  for  which 
originally  the  shipowners  were  not  liable,  by  unshipping  and  drying  it, 
where  that  is  a  reasonable  and  ordinary  course  to  take,  and  would  cer- 
tainly have  been  adopted  by  the  shippers  if  the  whole  adventure  had 
been  under  their  control  and  at  their  risk. 

It  is  remarkable  that,  upon  a  question  so  familiar  to  persons  conver- 
sant with  maritime  affairs,  and  which  has  so  constantly  to  be  consid- 
ered from  another  point  of  view  in  settling  claims  upon  policies  of  in- 
surance, the  reported  authorities  in  this  country,  so  far  as  regards  the 
mutual  rights  and  liabilities  of  shipper  and  shipowner,  should  be  so 
rare.  The  only  case  in  which  it  was  much  discussed  is  that  of  Tron- 
son  V.  Dent,  8  Moo.  P.  C.  419.  [The  learned  judge  then  considered 
that  case.]     *     *     * 

The  existence  of  such  duty  to  take  active  measures  for  the  preserva- 
tion of  the  cargo  from  loss  or  deterioration  in  case  of  accidents  is, 
however,  distinctly  recognized  in  the  maritime  law  in  one  important 
particular — wherein  it  follows  the  civil  law,  which,  though  it  be  not 
recognized  as  jus  commune,  either  here  or  abroad,  in  mercantile  or 
maritime  affairs  (see  Balcasseroni,  Leggi  del  Cambio,  31),  has  been 
the  source  of  many  valuable  rules — namely,  that  the  master  may  incur 
expense  for  the  preservation  of  the  cargo,  and  may  charge  such  ex- 
pense against  the  owner  of  the  cargo  in  the  form  of  particular  aver- 
age.^^  This  maritime  right  is,  in  one  point  of  view,  analogous  to  that 
of  salvage,  and  it  may  be  urged  that  the  services  in  respect  of  which 
it  is  rendered  should,  as  in  the  case  of  salvage,  be  looked  upon  as  op- 
tional and  not  obligatory.  There  is,  however,  this  marked  distinction : 
That  the  master,  as  representing  the  shipowner,  has  the  charge  of  the 
goods  under  contract  for  the  joint  benefit  of  the  shipowner  and  ship- 
per, and  falls  within  the  class  of  persons  who  are  under  obligation  to 
take  care  of  and  preserve  the  goods  as  bailees.  (Pothier,  Obligations, 
art.  142,  and  NantisSement,  art.  29  et  seq.,  and  as  to  extraordinary 
expenses,  articles  60,  61 ;  and  also  under  the  special  head  of  care  im- 
posed upon  masters,  Louages  Maritimes,  Charte-partie,  art.  31.)    This 

2  7  See  note  to  Cargo  ex  Argos,  post,  p.  311, 


Ch.  1)  THE    CONDUCT   OF   TRANSPORTATION.  75 

obligation  on  the  part  of  the  master  has  been  commonly  recognized, 
both  in  respect  of  preserving  goods  on  board  in  a  state  of  safety  by 
pumping,  ventilation,  and  other  proper  means,  and  of  saving  goods 
which  by  accident  have  been  exposed  to  danger.  Thus,  even  in  case 
of  wreck,  it  is  laid  down,  in  a  work  on  sea  laws,  approved  by  Lord 
Stowell  (The  Neptune,  1  Hagg.  Adm.,  at  page  232),  that  the  master 
"ought  to  preserve  the  most  valuable  goods  first,  and  by  attention  and 
presence  of  mind  endeavor  to  lessen  the  evil;  and  save,  or  help  to 
save,  as  much  as  possible."  Jacobsen,  book  2,  c.  I,  p.  112.  *  *  * 
There  are  unquestionably  cases  in  which  the  exercise  of  such  a  duty 
would  be  incumbent  upon  the  master,  as  representing  the  owners  of 
the  ship  and  for  their  interest.  As,  for  instance,  in  the  case  of  a  per- 
ishable cargo  so  damaged  by  salt  water  that  it  could  not,  in  its  exist- 
ing state,  be  taken  forward  in  specie  to  the  port  of  discharge,  so  as  to 
earn  the  freight,  but  which  could,  at  an  expense  considerably  less  than 
the  freight,  be  dried  and  carried  on.  In  such  a  case,  to  earn  the 
freight,  it  might  be  for  the  interest  of  the  owner  of  the  ship  to  save 
the  cargo  by  drying.  To  sell  it,  or  abandon  it,  would  give  no  right 
to  freight  pro  rata  against  the  owner  of  the  cargo,-'*  nor  any  right  to 
recover  against  the  underwriter  upon  freight.  Mordy  v.  Jones,  4  B, 
&  C.  394,  recognized  in  Philpott  v.  Swan,  11  C.  B.  (N.  S.)  at  page 

9g]^         *       *       * 

In  such  a  case,  if  the  process  were  also  for  the  benefit  of  the  owner 
of  the  cargo,  the  expenses  would  have  fallen,  according  to  the  ordinary 
practice,  upon  the  cargo  as  particular  average.  It  is  clear,  therefore, 
that  there  are  cases  in  which  it  is  the  duty  of  the  master  to  save  and 
dry  the  cargo,  even  as  between  him  and  his  owner,  though  the  expense 
of  his  performing  that  duty  fall  upon  the  cargo  saved.  Can  it  be  that 
this  duty  of  taking  care  of  the  cargo  by  active  measures,  if  necessary, 
at  the  expense  of  the  cargo,  is  owing  only  to  the  shipowner,  or  that  it  is 
other  than  a  duty  to  take  reasonable  care  of  the  cargo,  both  in  its 
sound  state  and  in  arresting  the  damage  to  which  it  has  become  liable 
by  accidents  of  the  sea,  for  the  benefit  of  all  who  are  concerned  in  the 
adventure? 

In  the  result  it  appears  to  us  that  the  duty  of  the  master,  in  this  re- 
spect, is  not,  like  the  authority  to  tranship,  a  power  for  the  benefit  of 
the  shipowner  only  to  secure  his  freight  (De  Cuadra  v.  Swan,  16  C.  B. 
[N.  S.]  772),  but  a  duty  imposed  upon  the  master,  as  representing  the 
shipowner,  to  take  reasonable  care  of  the  goods  intrusted  to  him,  not 
merely  in  doing  what  is  necessary  to  preserve  them  on  board  the  ship 
during  the  ordinary  incidents  of  the  voyage,  but  also  in  taking  reason- 
able measures  to  check  and  arrest  their  loss,  destruction,  or  deteriora- 
tion, by  reason  of  accidents,  for  the  necessary  efifects  of  which  there 
is,  by  reason  of  the  exception  in  the  bill  of  lading,  no  original  liability. 

2  8  For  the  right  to  freight  on  goods  not  carried  to  destination,  see  post, 
p.  28S,  note. 


76  THE  carrier's  undertaking.  (Part  2 

The  exception  in  the  bill  of  lading  was  relied  upon  in  this  court  as 
completely  exonerating  the  shipowner;  but  it  is  now  thoroughly  set- 
tled that  it  only  exempts  him  from  the  absolute  liability  of  a  common 
carrier,  and  not  from  the  consequences  of  the  want  of  reasonable  skill, 
diligence,  and  care,  which  want  is  popularly  described  as  "gross  neg- 
ligence."    *     *     * 

For  these  reasons  we  think  the  shipowners  are  answerable  for  the 
conduct  of  the  master,  in  point  of  law,  if,  in  point  of  fact,  he  was 
guilty  of  a  want  of  reasonable  care  of  the  goods  in  not  drying  them  at 
Liverpool. 

This  raises,  in  the  end,  the  question  of  fact,  whether  there  was  a 
breach  of  the  duty  thus  affirmed,  a  question  which,  though  properly 
one  for  a  jury,  we  are,  under  the  power  given  in  the  special  case  to 
draw  inferences  of  fact,  and  the  thirty-second  section  of  the  Common 
Law  Procedure  Act,  1854,  bound  to  determine.  It  is  obvious  that  the 
proper  answer  must  depend  upon  the  circumstances  of  each  particular 
case,  and  that  the  question,  whether  active  special  measures  ought  to 
have  been  taken  to  preserve  the  cargo  from  growing  damage  by  acci- 
dent, is  not  determined  simply  by  showing  damage  done  and  suggest- 
ing measures  which  might  have  been  taken  to  prevent  it.  A  fair  al- 
lowance ought  to  be  made  for  the  difficulties  in  which  the  master  may 
be  involved.  The  performance  of  such  a  duty,  whether  it  be  for  the 
joint  benefit  of  the  shipowner  and  the  shipper,  or  for  the  benefit  of  the 
shipper  only,  could  not  be  excused  by  reason  of  insignificant  delay  not 
amounting  to  deviation ;  and  there  are  many  cases  of  reasonable  delay 
in  ports  of  call,  for  purposes  connected  with  the  voyage  though  not 
necessary  for  its  completion,  which  do  not  amount  to  deviation.  It 
could  not  be  insisted  upon  if  a  deviation  were  involved.  The  place,, 
the  season,  the  extent  of  the  deterioration,  the  opportunity  and  means 
at  hand,  the  interests  of  other  persons  concerned  in  the  adventure, 
whom  it  might  be  unfair  to  delay  for  the  sake  of  the  part  of  the  cargo 
in  peril;  in  short,  all  circumstances  afifecting  risk,  trouble,  delay,  and 
inconvenience,  must  be  taken  into  account.  Nor  ought  it  to  be  for- 
gotten that  the  master  is  to  exercise  a  discretionary  power,  and  that 
his  acts  are  not  to  be  censured  because  of  an  unfortunate  result,  un- 
less it  can  be  affirmatively  made  out  that  he  has  been  guilty  of  a  breach 
of  duty.     *     *     * 

The  facts  stated  are  all  in  favor  of  the  conclusion  that  the  beans 
might  have  been  dried,  during  an  insignificant  delay,  at  a  moderate 
expense,  which  there  would  have  been  no  difficulty  in  providing  from 
or  upon  the  credit  of  the  shippers ;  and  no  circumstance  is  stated  to 
show  any  special  risk,  trouble,  inconvenience,  or  other  objection.  The 
master  thought  proper,  as  he  was  entitled  to  do,  to  reject  the  offer  of 
the  shippers  to  take  the  beans  out  of  his  hands  upon  terms  not  unrea- 
sonable, and  insisted,  as  he  was  entitled  to  do,  upon  keeping  them  in 
pledge  for  the  future  freight ;  and  having  done  so,  he  thought  proper 
to  reship  and  replace  a  large  part  of  them  and  to  put  to  sea  with. 


•Ch.  1)  THE   CONDUCT   OF   TRANSPORTATION.  77 

them  in  a  state  in  which  no  prudent  or  reasonable  man  would  have 
shipped  or  put  to  sea  with  them,  taking  the  risk  of  their  arriving  at 
Glasgow  just  in  the  state  of  beans,  so  as  to  carry  full  freight  for  the 
shipowners,  but  largely  deteriorated  by  the  fermentation  during  the 
transit. 

We  thus  agree  with  the  court  below,  that  the  duty  exists  in  law, 
and  that,  under  the  circumstances,  the  breach  of  duty  is  sufficiently 
made  out  in  fact,  and  that  the  defendants,  as  shipowners,  are  liable  in 
damages. 

The  judgment  of  the  Court  of  Queen's  Bench  must  therefore  be 
•affirmed.     Judgment  affirmed.-^ 


CRAKER  V.  CHICAGO  &  N.  W.  RY.  CO. 
(Supreme  Court  of  Wisconsin,  1875.    36  Wis.  657,  17  Am.  Rep.  501.) 

Appeal  from  the  circuit  court  for  Sauk  county. 

Action  for  insulting,  violent  and  abusive  acts  alleged  to  have  been 
•done  to  the  plaintifif  by  the  conductor  of  one  of  defendant's  trains 
while  plaintiff  was  a  passenger  on  such  train.  Answer,  a  general  de- 
nial.    *     *     * 

The  court  refused  a  nonsuit,  and  instructed  the  jury,  in  substance, 
that  if  plaintiff,  whilst  a  passenger  as  above  stated,  was  abused,  in- 
sulted or  ill-treated  by  the  conductor  of  the  train,  defendant  was  li- 
able to  her  for  such  injury  as  might  be  found  from  the  evidence  to 
have  been  inflicted.  *  *  ^  Defendant  requested  the  court  to  in- 
struct the  jury,  that  upon  the  evidence  plaintiff  was  not  entitled  to 
recover,  "the  acts  of  the  conductor  complained  of  not  having  been 

20  See.  also.  Sfeamlmnt  Lvnx  v.  K'wg.  12  Mo.  272.  49  Am.  Dec.  135  (1848); 
Chonteaux  v.  Leech,  18  Pa.  224,  57  Am.  Dec.  G02  (1852),  post,  pp.  128,  note,  311 
note. 

"Now  here  it  appears  that  the  waggoner  was  informed  more  than  once  of 
the  leakage,  after  which  notice  it  was  a  duty  he  owed  to  his  employers  to 
have  the  leak  examined  and  stopped  at  one  of  the  stages  where  he  halted. 
That  beinir  so,  the  carrier  became  clearly  liable  on  this  ground,  independently 
of  the  otiier  point  in  the  case,  and  therefore  I  cannot  consent  to  disturb- 
ing the  verdict."    Lord  Ellenborough.  in  Beck  v.  Evans,  IG  East.  244  (1812). 

It  is  a  carrier's  dutv  to  break  packages  when  that  is  necessary  for  saving 
the  goods.    Bird  v.  Cromwell.  1  :Mo.  59.  13  Am.  Dec.  470  (1821). 

It  mav  become  his  duty  to  sell  the  goods.  "  *  *  *  When  a  cargo  on 
freight  is  so  much  injured  that,  though  capable  of  being  carried  to  the  port  of 
destination  and  there  landed,  yet.  from  its  present  state,  it  will  endanger  the 
safety  as  well  of  the  ship  as  of  the  cargo,  or  it  will  become  utterly  worthless 
on  arrival  at  the  port  of  destination,  it  is  the  duty  of  the  master,  exercising  a 
sound  discretion  for  the  benefit  of  all  concerned,  and  especially  of  the  .shippers 
of  the  cargo,  to  land  and  sell  the  .^ame  at  the  place  where  the  necessity  arises, 
whether  it  be  the  original  port  of  the  shipment  to  which  the  ship  returns,  or 
anv  intermediate  port  at  which  the  ship  arrives  in  the  course  of  the  voyage. 
It  would  be  contrary  to  common  sense  and  common  justice  for  him  to  sacri- 
fice the  cargo  for  the  benefit  of  another  party  in  interest,  or  to  elect  the  party 
upon  whom  the  ruin,  caused  by  a  common  calamity,  should  fall."  Story.  J  , 
In  Jordan  v.  Warren  Ins.  Co.,  1  Story,  342,  Fed.  Cas.  No.  7.524  (1840).  Ace. 
■Cockburn,  C.  J.,  in  Notara  v.  Henderson,  L.  R.  5  Q.  B.  346  (1870). 


78  THE  carrier's  undertaking.  (Part  2 

committed  within  the  scope  of  his  employment  or  in  the  performance 
of  any  actual  or  supposed  duty";   but  the  instruction  was  refused. 

Plaintiff  had  a  verdict  for  $1,000  damages;  a  new  trial  was  de- 
nied;  and  defendant  appealed  from  a  judgment  on  the  verdict. 

RvAX,  C.  J.^°  We  cannot  help  thinking  that  there  has  been  some 
useless  subtlety  in  the  books  in  the  application  of  the  rule  respondeat 
superior,  and  some  unnecessary  confusion  in  the  liability  of  princi- 
pals for  willful  and  malicious  acts  of  agents.  *  *  *  Jn  spite  of 
all  the  learned  subtleties  of  so  many  cases,  the  true  distinction  ought 
to  rest,  it  appears  to  us,  on  the  condition  whether  or  not  the  act  of 
the  servant  be  in  the  course  of  his  employment,  as  is  virtually  recog- 
nized in  Ellis  V.  Turner  (1800)  8  T.  R.  531. 

But  we  need  not  pursue  the  subject.  For,  however  that  may  be  in 
general,  there  can  be  no  doubt  of  it  in  those  employments  in  which 
the  agent  performs  a  duty  of  the  principal  to  third  persons,  as  be- 
tween such  third  persons  and  the  principal.  Because  the  principal  is 
responsible  for  the  duty,  and  if  he  delegate  it  to  an  agent,  and  the 
agent  fail  to  perform  it,  it  is  immaterial  whether  the  failure  be  acci- 
dental or  willful,  in  the  negligence  or  in  the  malice  of  the  agent;  the 
contract  of  the  principal  is  equally  broken  in  the  negligent  disregard, 
or  in  the  malicious  violation,  of  the  duty  by  the  agent.     *     *     * 

The  case  of  Weed  v.  P.  R.  Co.  (1858)  17  N.  Y.  362,  72  Am.  Dec. 
474,  will  be  found  to  be  a  clear  and  well-reasoned  case  upon  the  sub- 
ject. It  was  there  held  that  it  was  no  defense  to  an  action  against  a 
railroad  corporation,  for  its  failure  to  transport  a  passenger  with 
proper  dispatch,  that  the  delay  was  the  willful  act  of  the  conductor 
in  charge  of  the  train.  The  rule  established  by  that  case,  as  we  think 
with  much  reason,  is  that,  where  the  misconduct  of  the  agent  causes 
a  breach  of  the  obligation  or  contract  of  the  principal,  there  the  prin- 
cipal will  be  liable  in  an  action,  whether  such  misconduct  be  willful 
or  malicious,  or  merely  negligent.     *     *     * 

In  Bass  v.  Railway  Co.  (1874)  36  Wis.  450,  17  Am.  Rep.  495.  we 
had  occasion  also  to  consider  somewhat  the  nature  of  the  obligations 
of  railroad  companies  to  their  passengers  under  the  contract  of  car- 
riage; the  "careful  transportation"  of  Railroad  Co.  v.  Finney  [10 
Wis.  388].  On  the  authority  of  such  jurists  as  Story,  J.,  and  Shaw, 
C.  J.,  we  likened  them  to  those  of  innkeepers.  And,  speaking  of  female 
passengers,  we  said:  "To  such,  the  protection  which  is  the  natural 
instinct  of  manhood  towards  their  sex  is  specially  due  by  common 
carriers."  In  Day  v.  Owen,  5  Mich.  520,  72  Am.  Dec.  62,  the  du- 
ties of  common  carriers  are  said  to  "include  everything  calculated 
to  render  the  transportation  most  comfortable  and  least  annoying  to 
passengers."  In  Nieto  v.  Clark,  1  Chff.  145,  Fed.  Cas.  No.  '10,262, 
the  court  says:  "In  respect  to  female  passengers,  the  contract  pro- 
ceeds yet  further,  and  includes  an  implied  stipulation  that  they  shall 

3  0  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


Ch.  1)  THE    CONDUCT   OF   TRANSPORTATION.  79 

be  protected  against  obscene  conduct,  lascivious  behavior,  and  every 
immodest  and  libidinous  approach." 

Long  before,  Story,  J.,  had  used  this  comprehensive  and  beautiful 
language,  worthy  of  him  as  jurist  and  gentleman,  in  Chamberlain  v. 
Chandler,  3  Alason,  242,  Fed.  Cas.  No.  2,575:  "It  is  a  stipulation, 
not  for  toleration  merely,  but  for  respectful  treatment,  for  that  de- 
cency of  demeanor  which  constitutes  the  charm  of  social  life,  for  that 
attention  which  mitigates  evils  without  reluctance,  and  that  prompti- 
tude which  administers  aid  to  distress.  In  respect  to  females,  it  pro- 
ceeds yet  farther;  it  includes  an  implied  stipulation  against  general 
obscenity,  that  immodesty  of  approach  which  borders  on  lascivious- 
ness,  and  against  that  wanton  disregard  of  the  feelings  which  aggra- 
vates every  evil."  These  things  were  said,  indeed,  of  passage  by 
water,  but  they  apply  equally  to  passage  by  railroad.  Commonwealth 
V.  Power,  7  Mete.  (Mass.)  596,  41  Am.  Dec.  465. 

These  were  among  the  duties  of  the  appellant  to  the  respondent, 
when  she  went  as  passenger  on  its  train ;  duties  which  concern  public 
welfare.  These  were  among  the  duties  which  the  appellant  appointed 
the  conductor  to  perform  for  it,  to  the  respondent.  If  another  person, 
officer  or  passenger  or  stranger,  had  attempted  the  indecent  assault 
which  the  conductor  made  upon  the  respondent,  it  would  have  been  the 
duty  of  the  appellant,  and  of  the  conductor  for  the  appellant,  to  pro- 
tect her.  If  a  person,  known  by  his  evil  habits  and  character  as  likely 
to  attempt  such  an  assault  upon  the  respondent,  had  been  upon  the 
train,  it  would  have  been  the  duty  of  the  appellant,  and  of  the  conduc- 
tor for  the  appellant,  to  the  respondent,  to  protect  her  against  the  like- 
lihood. Stephen  v.  Smith,  29  Vt.  160 ;  Railroad  Co.  v.  Hinds,  53  Pa. 
512,  91  Am.  Dec.  224;  Commonwealth  v.  Power,  supra;  Xieto  v. 
Clark,  supra ;   and  other  cases  cited  in  Bass  v.  Railway  Co.,  supra. 

We  do  not  understand  it  to  be  denied  that  if  such  an  assault  on  the 
respondent  had  been  attempted  by  a  stranger,  and  the  conductor  had 
neglected  to  protect  her,  the  appellant  would  have  been  liable.  But  it 
is  denied  that  the  act  of  the  conductor  in  maliciously  doing  himself 
what  it  was  his  duty,  for  the  appellant  to  the  respondent,  to  prevent 
others  from  doing,  makes  the  appellant  liable.  It  is  contended  that, 
though  the  principal  would  be  liable  for  the  negligent  failure  of  the 
agent  to  fulfill  the  principal's  contract,  the  principal  is  not  liable  for 
the  malicious  breach  by  the  agent,  of  the  contract  which  he  was  ap- 
pointed to  perform  for  the  principal:  as  we  understand  it,  that  if 
one  hire  out  his  dog  to  guard  sheep  against  wolves,  and  the  dog  sleep 
while  a  wolf  makes  away  with  a  sheep,  the  owner  is  liable;  but  if  the 
dog  play  wolf  and  devour  the  sheep  himself,  the  owner  is  not  liable. 
The  bare  statement  of  the  proposition  seems  a  reductio  ad  absurdum. 

The  radical  difficulty  in  the  argument  is,  that  it  limits  the  contract. 
The  carrier's  contract  is  to  protect  the  passenger  against  all  the 
world;  the  appellant's  construction  is,  that  it  was  to  protect  the  re- 
spondent against  all  the  world  except  the  conductor,  whom  it  appoint- 


80  THE   carrier's    UNDERTAKING.  (Part  2 

€d  to  protect  her:  reserving  to  the  shepherd's  dog  a  right  to  worry 
the  sheep.  No  subtleties  in  the  books  could  lead  us  to  sanction  so 
vicious  an  absurdity.  *  *  *  It  is  enough  to  say  that  the  appel- 
lant's contract  of  careful  carriage  with  the  respondent  was  not  kept, 
was  tortiously  violated,  by  the  officer  appointed  by  the  appellant  to 
keep  it.     *     *     * 

We  cannot  think  that  there  is  a  question  of  the  respondent's  right 
to  recover  against  the  appellant,  for  a  tort  which  was  a  breach  of  the 
contract  of  carriage.  We  might  well  rest  our  decision  on  principle. 
But  we  also  think  that  it  is  abundantly  sanctioned  by  authority.  [Cit- 
ing cases.]  There  are  cases,  even  of  recent  date,  which  hold  the  other 
way.  But  we  think  that  the  great  weight  of  authority  and  the  ten- 
dency of  decision  sanction  our  position.     ^=     *     * 

The  judgment  of  the  court  below  is  affirmed."^ 


TEXAS  &  P.  RY.  CO.  v.  JONES. 

(Court  of  Civil  Appeals  of  Texas,  1897.     39  S.  W.  124.) 

Action  by  Jessie  Jones  and  another  against  the  Texas  &  Pacific 
Railway  Company.  From  a  judgment  for  plaintiff,  defendant  ap- 
peals. 

Hunter,  J.^-  *  *  *  Appellant  complains  of  the  following 
charge,  as  being  upon  the  weight  of  the  evidence,  and  as  submitting 
an  improper  measure  of  damages,  contending  that,  unless  there  was 
bodily  injury,  no  damage  could  be  recovered  for  mental  suffering: 
"If  you  find  and  believe  that  on  or  about  the  5th  day  of  April,  1892, 
J.  E.  Pitzer  was  the  agent  of  defendant  in  charge  of  its  station  at 
Millsap;  and  if  you  believe  that  the  defendant  had  and  maintained 
a  depot  for  passengers  at  said  point;  and  if  you  believe  that  the  said 
J.  E.  Pitzer  was  the  agent  of  defendant,  and  in  charge  of  its  said 

31  See,  also,  Goddard  v.  Grand  Trunk  Ry.,  57  Me,  202,  2  Am,  Rep.  39  (18G9) ; 
Chicago,  etc.,  R.  Co.  v,  Flexman,  103  111.  54G.  42  Am.  Rep.  33  (18S2) ;  Savannah, 
Fla.  &  W.  Rv.  Co.  V.  Quo.  103  Ga.  12.5,  20  S.  E.  G07,  40  L.  R.  A.  483.  C>8  Am. 
St.  Rep.  So  (1897) ;  Haver  v.  Central  R.  Co.,  G2  N.  J.  Law.  282.  41  Atl,  91G.  43 
L,  R.  A.  84,  72  Am.  St.  Rep.  G47  (1898).  In  Hayne  v.  Union  St.  Rv.  Co.,  189 
Mass.  iSol,  7G  N.  E.  219,  3  L.  R.  A.  (N.  S.)  GOo,  109  Am.  St.  Rep.  G.j.d  (1905),  a 
conductor  of  one  of  defendant's  cars  threw  a  dead  hen  in  sport  at  the  motor- 
man  of  another  of  defendant's  cars,  as  it  was  passing,  hroke  a  window,  and 
thereby  injured  the  plaintiff,  a  passenger.  Knowlton,  C,  J.,  said:  "If  one 
of  the  reasons  for  the  liability  is  that  the  servant,  through  his  relation  to 
his  master,  owes  a  duty  to  pi'otect  the  passenger  fx-om  injuries  by  others,  and 
a  fortiori  from  injuries  by  himself,  this  duty,  so  far  as  it  relates  to  the  last 
branch  of  the  obligation,  is  not  confined  to  servants  the  nature  of  whose  serv- 
ice recpiires  them  to  give  personal  attention  to  the  passenger  in  reference  to 
possible  injuries  from  others,  but  it  includes  those  employed  in  the  general 
business  of  transportation,  and  involves  a  duty  to  refrain  from  doing  injury 
to  any  of  the  master's  passengers,  whether  in  the  special  charge  of  the  serv- 
ant or  not." 

32  Parts  of  the  opinion  are  omitted. 


Ch.  1)  THE    CONDUCT   OF   TRAN8PORTATIOX.  81 

depot;  and  if  you  believe  that  on  said  day  the  plaintiff  Jessie  Jones 
was  in  said  depot  for  the  purpose  of  taking  passage  on  one  of  the 
trains  of  the  defendant;  if  you  believe  that  while  the  plaintiff  was 
in  said  depot,  waiting  to  take  one  of  the  defendant's  trains,  the  wife 
of  said  agent,  J.  E.  Pitzer,  did,  in  the  presence  and  hearing  of  said 
J.  E.  Pitzer,  abuse  and  insult  plaintiff  Jessie  Jones,  by  charging  her, 
the  said  Jessie  Jones,  with  being  indecent,  or  with  having  undressed 
before  men,  or  with  having  stolen  scissors  from  the  said  Mrs.  Pitzer ; 
and  if  you  believe  that  the  said  J.  E.  Pitzer  made  no  effort  to  protect 
the  plaintiff  from  such  insult;  and  if  you  believe  that  the  said  J.  E. 
Pitzer  could,  by  the  use  of  reasonable  effort,  have  prevented  such 
insult ;  and  if  you  believe  that  thereby  plaintiff  Jessie  Jones  was 
mortified  and  humiliated,  and  that  she  suffered  mental  pain  or  anguish, 
and  that  she  was  thereby  made  sick,  and  suffered  bodily  pain,  and  was 
thereby  damaged — you  will  find  for  the  plaintiff  such  actual  damages 
as  she  sustained  on  account  of  such  insult."  We  are  of  opinion  that 
the  charge  is  not  subject  to  the  objections  made.  The  language  re- 
cited in  the  charge  was  plainly  abusive  and  insulting  language,  and 
it  was  not  a  charge  on  the  weight  of  evidence  for  the  court  to  so 
treat  it. 

On  her  right  to  recover  damages  for  mental  suffering,  we  think 
that  it  was  the  duty  of  the  appellant's  station  agent  to  protect  appellee 
from  insult  and  abuse  from  all  persons  while  she  was  at  its  station, 
waiting  to  become  a  passenger  on  its  train,  whether  she  received  physi- 
cal injuries  or  did  not.  Leach  v.  Leach,  11  Tex.  Civ.  x\pp.  699,  33  S. 
W.  703.  *  *  *  This  court  intimated  on  a  former  appeal  of  this 
case  (29  S.  W.  499)  that  appellee  was  probably  entitled  to  protection 
at  the  time  she  was  abused  and  insulted,  although  she  had  not  then 
bought  her  ticket;  citing  Hutch.  Carr.  §  559.  We  now  hold  in  accord- 
ance with  that  intimation.  And  we  also  think  that  the  agents  and 
servants  of  appellant  were  bound  to  legal  notice  of  the  fact  that  she 
was  there  with  the  intention  of  becoming  a  passenger,  and  therefore 
entitled  to  the  protection  which  that  relation  conferred  upon  her,  be- 
cause of  her  presence  in  the  waiting  room  with  such  intention  at  the 
usual  time  for  the  assembling  of  persons  at  such  place  for  such  pur- 
pose. Id.  §§  554-559.  We  find  no  error  in  the  judgment,  and  it  is 
affirmed. ^^ 

3  3  A  carrier's  duty  to  use  care  to  keep  his  passenger  from  harm  is  illus- 
trated bv  the  following  cases:  Pittsburgh,  etc.,  R.  Co.  v.  Hinds.  53  Pa.  512, 
91  Am.  bee.  224  (1867).  passengers  fighting  in  car;  King  v.  Railway  Co.  (C. 
C.)  22  Fed.  413  (18S4),  failure  to  eject  or  disarm  passenger  crazed  by  drink; 
Chicago,  etc.,  R.  Co.  v.  Pillsbury.  123  111.  9,  14  N.  E.  22.  5  Am.  St.  Rep.  4S3 
(1S87),  admitting  to  car  strikebreaker,  whose  presence  was  likely  to  lead  to 
attack  by  mob ;  Richmond  &  Danville  R.  Co.  v.  Jefferson,  89  Ga.  554,  IG  S.  E. 
69,  17  L.  R.  A.  571,  32  Am.  St.  Rep.  87  (1892),  negro  passenger  made  to  dance; 
Lucy  V.  Railway  Co..  64  Minn.  7,  65  N.  W.  944.  31  L.  R.  A.  551  (1896).  woman 
passenger  Insulted :  Exton  v.  Central  R.  Co.  of  N.  J,  62  N.  J.  Law,  7,  42  Atl. 
486,  56  L.  R.  A.  508  (1899),  cabmen  scuffling  in  front  of  station;  Texas  &  Pac. 

Green  Cakr. — 6 


82  THE  carrier's  undertaking.  (Part  2 

ATCHISON,  T.  &  S.  F.  RY.  CO.  v.  PARRY. 

(Supreme  Court  of  Kansas,  1903.    07  Kan.  515,  73  Pac.  105.) 

Cunningham,  J.^*  Robert  Parry  was  a  passenger  on  the  Santa 
Fe  Railway  going  from  Purcell,  Ind.  T.,  to  Denver,  Colo.  In  mak- 
ing this  journey  he  was  required  to  change  cars  at  Newton,  Kan. 
As  the  train  approached  Newton,  and  a  mile  or  two  south  of  it,  the 
conductor  observed  that  Parry  was  ailing  with  something  that  looked 
to  him  like  a  fit.  He  noticed  that  Parry  "was  straightened  out,  and 
his  limbs  was  stiff  and  jerking.  He  was  frothing  at  the  mouth,  and 
his  eyes  looked  glaring  and  starry,  just  like  a  man  that  had  a  fit." 
When  the  train  arrived  at  Newton,  Parry  seemed  to  be  recovering, 
but  had  not  entirely  regained  consciousness,  and  the  conductor  was 

Ry.  Co.  V.  Dick.  26  Tex.  Civ.  App.  2.^6.  03  R.  W.  895  (1001),  passenger  assaulted 
after  leaving  train,  but  before  leaving  station ;  Texas,  etc..  Ry.  Co.  v.  Tarking- 
ton.  27  Tex.  Civ.  App.  353,  00  S.  W.  137  (liKtl).  passenger  accused  by  conductor 
of  dishonestly  trying  to  evade  fare ;  Bosworth  v.  Union  R.  Co.,  post,  p.  .331 
(1903),  street  car  attacked  by  mob ;  Seawell  v.  Carolina  Central  R.  Co.,  132  N. 
C.  850,  44  S.  E,  010  (1903),  passenger  waiting  to  take  train  pelted  with  eggs ; 
Kuhlen  v.  B.  &  N.  Co.,  193  Mass.  341,  79  N.  E.  815,  7  L.  R.  A.  (X.  S.)  729,  118 
Am.  St.  Rep.  510  (1907).  crowding  in  entering  car  at  station. 

But  a  carrier  is  not  liable  if  unable  to  anticipate  or  suppress  disorder.  Bat- 
ton  v.  So.  Ala.  R.  Co..  77  Ala.  591,  54  Am.  Rep.  SO  (1SS4),  indecent  language ; 
Ellinger  v.  P.,  W.  &  B.  R.  Co.,  1.53  Pa.  213,  25  Atl.  1132,  34  Am.  St.  Rep.  097 
(1893),  rude  jostling  by  i>nssenger  entering  car;  Madden  v.  N.  C.  R.  Co.,  98 
App.  Div.  400,  90  N.  Y.  Supp.  201  (1904),  crowd  rushing  into  excursion  train  ; 
Counell  Y.  Chesapeake,  etc.,  Ry.  Co.,  93  Va.  44,  24  S.  E.  407,  32  L.  R.  A.  792,  57 
Am.  St.  Rep.  7S0  (1890),  passenger  in  sleeping  car  shot  bv  robber;  Tall  v. 
Steam  Packet  Co.,  90  Md.  248,  44  Atl.  l(Mi7.  47  L.  R.  A.  12*0  (18i>9),  shooting 
affrav  between  gamblers;  Brunswick  &  Western  R.  Co.  v.  Ponder,  117  Ga. 
03,  43  S.  E.  430,  00  L.  R.  A.  713,  97  Am.  St.  Rep.  152  (1903),  illegal  arrest  by 
officer  under  claim  of  authority.  And  the  duty  does  not  exist  towards  persons 
not  passengers.  Houston  &  Texas  Central  R.  Co.  v.  Phillio,  90  Tex.  18,  09  S. 
W.  994,  .59  L.  R.  A.  392,  97  Am.  St.  Rep.  80S  (1!XI2),  husband  of  sick  passenger 
taking  her  to  train.  And  see  Williams  v.  Pullman  Co.,  40  La.  Ann.  .S7,  3 
South.  031,  8  Am.  St  Rep.  512  (1S8S),  assault  by  porter  on  person  entering 
Pullman  car  without  right. 

Obligation  of  Sleeping  Cab  Compant  as  to  Care  of  Passengers.— A 
sleeping  car  company  owes  to  its  passengrt's  a  duty  to  guard  them  with  care 
from  harm  at  the  hands  of  others,  and  is  liable,  though  the  Injury  is  Inflicted 
by  the  willful  and  wanton  act  of  its  servant.  In  Lewis  v.  N.  Y.  Sleeping  Car 
Co.,  143  Mass.  267,  9  N.  E.  015,  58  Am.  Rep.  135  (1887),  Morton,  C.  .T..  said:  "A 
sleeping  car  company  holds  itself  out  to  the  world  as  furnishing  safe  and  com- 
fortable cars,  and,  when  it  sells  a  ticket,  it  impliedly  stipulates  to  do  so.  It 
invites  passengers  to  pay  for,  and  make  use  of,  the  cars  for  sleeping,  all  par- 
ties knowing  that,  during  the  greater  part  of  the  night,  the  passenger  will 
be  asleep,  powerless  to  protect  himself  or  to  guard  his  proi^erty.  *  *  * 
The  law  raises  the  duty  on  the  part  of  the  car  company  to  afford  him  this  pro- 
tection. While  it  is  not  liable  as  a  coimnon  carrier,  or  as  an  Innholder,  yet 
it  is  its  duty  to  use  reasonable  care  to  guard  the  passengers  from  theft,  and 
if,  through  want  of  such  care,  the  personal  effects  of  a  passenger,  such  as 
he  might  reasonably  carry  with  him.  are  stolen,  the  company  is  liable  for  it." 
See,  further,  as  to  the  liabilitv  of  sleeping  car  companies.  21  L.  R.  A.  289, 
note;  Carriers,  9  Cent.  Dig.  §§' 1579-1589,  1593-1590,  4  Dec.  Dig.  §§  411,  413, 
410,  417. 

34  Parts  of  the  opinion  are  omitted. 


Ch.   1)  THE    CONDUCT   OF   TRANSPORTATION.  83 

unable  to  get  any  response  when  he  tried  to  converse  with  him.  The 
conductor  called  the  depot  master,  who,  with  the  assistance  of  the 
porter,  removed  Parry  from  the  train;  the  depot  master  being  in- 
formed by  the  conductor  of  the  condition  of  the  passenger,  and  re- 
quested to  take  care  of  him,  and  see  that  he  was  put  upon  the  right 
train  to  take  him  to  his  destination,  which  train  was  to  leave  in  about 
four  hours. 

After  the  passenger  was  removed  from  the  train,  he  was  left  in  the 
care  of  the  depot  master,  the  porter  going  to  his  other  duties.  The 
depot  master  tried  to  talk  with  him,  but  elicited  nothing  but  groans, 
mutterings,  and  unintelligible  replies.  It  seemed,  however,  that  he 
desired  to  go  his  own  way  without  any  assistance,  so  that,  after  help- 
ing him  on  with  his  coat,  he  was  allowed,  after  about  five  or  ten  min- 
utes, to  take  his  own  course,  without  further  attention,  the  depot  mas- 
ter supposing  that  he  had  been  drinking,  and  desired  to  go  where  he 
could  procure  liquor.  The  next  seen  of  him  was  about  four  hours 
after  his  removal  from  the  train,  at  a  point  about  five  miles  south  of 
Newton,  where,  having  lain  down  upon  the  railway  tracks,  he  was 
run  over  by  a  south-bound  train  and  killed. 

The  negligence  counted  upon  by  the  plaintiff,  his  widow,  as  a 
ground  for  recovery,  was  that  the  company  failed  to  exercise  a  proper 
degree  of  caution  and  care  in  looking  after  Parry  after  he  was  re- 
moved from  the  train  in  an  unconscious  and  irresponsible  condition 
of  mind  and  body.  The  jury  returned  a  general  verdict  in  favor  of 
the  defendant  in  error,  and  also  answered  special  questions  submitted 
to  them.     =1=     *     * 

The  railway  company  insists  that  the  judgment  against  it  was  er- 
roneous, first,  because  there  was  no  evidence  showing  any  culpable 
negligence  on  the  part  of  any  of  its  agents  or  servants;  second,  if 
there  was,  that  such  negligence  was  not  the  proximate  cause  of  the 
injury.  The  principles  to  which  we  must  look  for  a  solution  of  these 
questions  are  neither  novel  nor  intricate.  Parry  was  a  passenger, 
not  only  while  on  the  train,  but  after  his  arrival  at  Newton.  Through 
no  fault  of  his,  he  was  in  such  a  condition  of  mind  and  body  as  to 
be  unable  to  care  for  himself  by  reason  of  the  sudden  sickness  which 
had  overtaken  him. 

The  duty  of  a  carrier  of  passengers  under  such  circumstances  was 
announced  in  the  syllabus  in  A.  T.  &  S.  F.  R.  Co.  v.  Weber,  33  Kan. 
543,  6  Pac.  877,  52  Am.  Rep.  543,  in  the  following  language :  "Where 
an  unattended  passenger,  after  entering  upon  a  journey,  becomes  sick 
and  unconscious  or  insane,  it  is  the  duty  of  the  railroad  company  to 
remove  him  from  the  train,  and  leave  him  until  he  is  in  a  fit  condition 
to  resume  his  journey,  or  until  he  shall  obtain  the  necessary  assistance 
to  take  care  of  him  to  the  end  of  his  journey.  The  duty  of  a  railroad 
company  to  such  a  passenger  does  not  end  with  his  removal  from  the 
train,  but  it  is  bound  to  the  exercise  of  reasonable  and  ordinary  care  in 


84  THE  carrier's  undertaking.  (Part  2 

temporarily  providing  for  his  protection  and  comfort."  The  follow- 
ing language  is  found  in  the  opinion:  "The  duty  of  the  railroad  com- 
pany, however,  with  respect  to  Weber,  did  not  end  with  his  removal 
from  the  train.  He  was  unconscious,  and  unable  to  take  care  of  him- 
self. The  company  could  not  leave  him  upon  the  platform  helpless, 
exposed,  and  without  care  or  attention.  It  was  its  duty  to  exercise 
reasonable  care  and  diligence  to  make  temporary  provision  for  his 
protection  and  comfort.  As  was  said  by  the  learned  court  who  tried 
the  cause:  'Of  course,  the  carrier  is  not  required  to  keep  hospitals  or 
nurses  for  sick  or  insane  passengers ;  but  when  a  passenger  is  found 
by  the  carrier  to  be  in  such  a  helpless  condition,  it  is  the  duty  of  the 
carrier  to  exercise  the  reasonable  and  necessary  offices  of  humanity 
toward  him  until  some  suitable  provision  may  be  made.'  " 

Whether  or  not  the  depot  master  discharged  this  duty  to  its  requir- 
ed measure  in  this  case  was  a  question  for  the  jury  to  determine. 
The  jury  did  determine  that  he  possessed  the  common  and  ordinary 
capabilities,  judgment,  and  prudence  of  men  generally,  and  that  at  the 
time  he  ceased  to  look  after  Parry  he  thought  that  deceased  had  suffi- 
cient strength  and  consciousness  to  take  care  of  himself,  and  did  not 
contemplate  that  he  would  wander  away  into  a  place  of  danger.  We 
think,  however,  that  this  hardly  shows  affirmatively  that  degree  of 
care  commensurate  with  the  duty  resting  upon  the  company.  It  is  not 
thus  made  to  appear  that  reasonable  and  ordinary  care  in  providing 
for  the  safety  of  the  deceased  was  exercised ;  whereas  by  the  general 
verdict  it  does  appear  that  such  care  was  not  exercised.     *     *     * 

The  judgment  will  be  affirmed.^ ^ 

3.-  See,  also,  Croom  v.  Chicago,  etc.,  Co.,  ."52  ^linn.  290,  53  N.  W.  1128.  18 
L.  K.  A.  G02,  38  Am.  St.  Rep.  557  (1893);  Railway  Co.  v.  Salzmau.  52  Ohio 
St.  5.58.  40  N.  E.  891,  49  Am.  St.  Rep.  745  (1895);  Comiolly  v.  Crescent,  etc., 
Co.,  41  La.  Ann.  57,  5  South.  259,  6  South.  526,  3  L.  R.  A.  133,  17  Am.  St.  Rep. 
389  (1896) ;  Wells  v.  N.  Y.  C.  R.  Co.,  25  App.  Div.  365,  49  N.  Y.  Supp.  510 
(1898);  111.  Cent.  Ry.  v.  Allen,  post,  p.  5,34;  Horn  v.  So.  Ry.,  78  S.  C.  67,  58 
S.  E.  963  (1907),  conductor  bound  to  give"' woman  incumbered  with  parcels 
needed  assistance  in  alighting.  But  compare  Pounder  v.  N.  E.  Ry.  Co.,  [1892] 
1  Q.  B.  385,  with  which  compare  Blain  v.  Railway  Co.,  5  Out.  L.  R.  334  (1903). 

In  Sullivan  v.  Seattle  El.  Co.,  44  Wash.  5:'..  86  Pac.  786  (1906),  defendant 
permitted  an  intoxicated  passenger  to  leave  its  car  at  night  at  a  regular 
station,  where  the  station  platform,  surroundetl  with  a  substantial  railing, 
and  the  tracks,  extended  upon  a  trestle  over  a  lake.  He  fell  into  the  lake 
and  was  drowned.  FuUerton,  J.,  said:  "A  carrier  is  not  obligated  to  re- 
ceive a  helpless,  imbecile,  or  drunken  person  as  a  passenger,  when  unat- 
tended ;  but,  if  it  does  receive  him,  it  must  give  him  such  care  as  will  in- 
sure him  a  safe  passage  to  some  pi'oper  destination.  It  cannot  lawfully  put 
him  off,  or  i)ermit  him  to  get  off,  at  a  place  where  there  is  danger  of  his 
perishing  or  coming  to  harm,  even  though  such  a  place  would  be  reasonably 
safe  for  one  in  a  normal  condition." 

When  a  passenger  has  been  made  helpless  by  falling  from  his  train,  it 
seems  that  it  is  the  railroad's  duty  to  stop  the  train  and  take  care  of  him, 
provided  it  can  be  done  with  due  regard  to  the  rights  of  other  passengers. 
Reed  v.  Louisville  &  N.  R.  Co.,  104  Ky.  603.  47  S.  W.  591,  48  S.  W.  416,  44 
L.  R.  A.  823  (1898).  But  no  such  duty  exists  towards  a  former  passenger, 
who,  having  been  ejected  for  misbehavior,  falls  while  attempting  to  re-enter 


Ch.  1)  THE    CONDUCT   OF   TRANSPORTATION.  85 


LOUISVILLE,  N.  O.  &  T.  R.  CO.  v.  PATTERSON. 

(Supreme  Court  of  Mississippi,  1893.    69  Miss.  421,  13  South.  697,  22  L.  R.  A. 

259.) 

Plaintiff,  a  white  man,  purchased  a  first-class  ticket  over  defend- 
ant's road,  and  got  on  its  train  at  Vicksburg,  Miss.,  and  went  into  the 
coach  provided  for  white  passengers  having  first-class  tickets.  The 
train  consisted  of  three  coaches  for  passengers.  *  *  *  Some  of 
the  passengers  were  asleep,  and  occupied  two  seats,  and  some  of  the 
seats  were  filled  with  baggage;  but  none  of  the  seats  were  vacant. 
The  plaintiff  insisted  that  the  conductor  should  get  him  a  seat ;  but  he 
refused  to  do  so,  and  told  plaintiff  to  get  a  seat  in  the  next  coach. 
He  went  into  the  next  coach,  and  got  a  seat ;  but  the  conductor,  com- 
ing in  soon  after,  required  him  to  leave  that  coach,  as  it  was  the  car 
set  apart  for  the  colored  passengers.  Plaintiff  then  went  into  the 
smoker,  but  soon  left  it,  because  the  smoke  nauseated  him,  and  went 
to  the  conductor,  and  insisted  that  he  would  get  him  a  seat,  and  threat- 
ened to  sue  the  railroad  if  he  did  not.  The  conductor  replied  in  an 
angry  tone  that  he  could  get  no  seat  in  there,  and  he  "could  sue,  and 

be  d d."     Plaintiff'  then  went  out  on  the  platform,  and  remained 

there  until  he  reached  a  station,  when  he  got  off  the  train.  *  *  '^^ 
Plaintiff  had  a  verdict  and  judgment  for  $75.  Defendant's  motion 
for  a  new  trial  was  overruled,  and  it  appealed. 

Woods,  J.  The  appellee  paid  for  a  seat  in  a  first-class  coach,  and 
was  entitled,  as  matter  of  right,  to  have  the  servants  of  the  railway 
company  who  were  in  charge  of  the  train  furnish  him  such  seat,  unless 
a  sudden  and  imusual  influx  of  passengers  rendered  this  imprac- 
ticable. It  is  perfectly  clear  from  all  the  evidence  in  this  case  that  the 
conductor  in  charge  of  the  train  could  and  should  have  made  provision 
for  seating  the  appellee.  It  is  equally  certain  that  a  proper  application 
of  the  appellee  to  that  effect  provoked  not  only  a  refusal  from  the  con- 
ductor, but  subjected  the  audacious  passenger  to  an  explosion  of  pro- 
fane and  contemptuous  wrath  from  that  official. 

That  a  jury  awarded  the  trivial  sum  complained  of  is  proof  positive 
that  no  undue  prejudice  existed  against  the  corporation.  Let  the 
company  thank  God,  and  take  courage.     Affirmed. 

the  train  without  right.  Chesapeake  &  O.  Ry.  Co.  v.  Saulsbury,  112  Ky.  91.j, 
66  S.  W.  1051.  56  L.  R.  A.  580  (1902). 

Compare  Cobb  v.  Gt.  W.  Ry.  Co.,  [1S94]  App.  Cas.  419,  refusal  to  delay 
train  to  enable  passenger  to  recover  stolen  money;  Henderson  v.  Louisville, 
etc.,  R.  Co.,  123  U.  S.  61,  8  Sup.  Ct.  60,  31  L.  Ed.  92  (1887),  refusal  to  stop 
train  to  recover  moiey  dropped  from  car  window. 


86  THE  carrier's  undertaking.  (Part  2 


HARDENBERG  v.  ST.  PAUL,  U.  &  M.  RY.  CO. 

(Supreme  Court  of  Minnesota,  1SS8.    39  Minn.  3,  38  N.  W.  625,  12  Am.  St.  Rep. 

610.) 

GiLFiLLAN,  C.  J.  Defendant  was  a  common  carrier  of  passengers 
for  hire,  maintaining  and  operating,  for  that  purpose,  a  line  of  railway 
from  IMinneapolis  to  Wayzata,  on  Lake  Minnetonka.  The  plaintiff, 
for  the  purpose  of  going  from  Minneapolis  to  Wayzata,  entered,  at  the 
former  place,  one  of  defendant's  regular  passenger  trains  for  the  lat- 
ter place,  which  immediately  started,  and,  before  plaintiff  could  look 
through  the  cars  in  the  train  to  find  a  seat,  it  was  going  at  a  high 
rate  of  speed.  Lipon  looking  through  the  train,  he  could  find  no  seat 
vacant.  At  the  first  opportunity  he  applied  to  the  conductor  to  fur- 
nish him  a  seat,  and  the  conductor  (as  we  assume,  because  the  seats 
were  all  filled)  refused  to  provide  him  one.  The  conductor  then  de- 
manded his  fare,  which  the  plaintiff  offered  to  pay  if  supplied  with  a 
seat,  but  refused  to  pay  unless  supplied  with  a  seat.  Up  to  this  the 
train  had  made  no  stop.  The  conductor  then  stopped  the  train,  and 
forcibly  put  the  plaintiff  off  at  a  place  distant  from  any  dwelling 
house,  more  than  two  miles  distant  from  any  flag  station,  and  more 
than  five  miles  distant  from  any  regular  station  of  defendant.  No 
complaint  is  made  that  the  conductor,  if  he  had  a  right  to  eject  plain- 
tiff, used  more  than  the  proper  amount  of  force.  The  only  question 
is,  had  the  conductor  a  right,  under  the  circumstances,  to  put  plaintiff 
off  at  the  place  where  he  did;  that  is,  out  in  the  country,  at  a  distance 
from  any  station? 

In  the  case  of  a  trespasser  on  a  train — that  is,  a  person  wrongfully 
upon  it,  as  where  he  enters  it  intending  not  to  pay  the  fare,  or  where 
he  wrongfully  refuses  to  pay  the  fare  when  properly  demanded — the 
conductor  is  not  required  to  put  him  off  at  one  place  rather  than  an- 
other, provided  he  do  not  wantonly  expose  him  to  peril  of  serious  per- 
sonal injury.  With  that  qualification,  he  may  put  him  off  at  a  place 
other  than  a  station,  and  is  not  required  to  consider  his  mere  con- 
venience. Wyman  v.  Railroad  Co.,  34  Minn.  210,  25  N.  W.  349. 
This  plaintiff,  however,  was  not  wrongfully  on  the  train.  It  is,  in 
general,  the  duty  of  a  railroad  company  to  provide  sufficient  cars  to 
carry  all  who  have  occasion  to  travel  on  its  line  of  road.  As  the  law 
does  not  require  unreasonable  things,  a  single  instance,  or  occasional 
instances,  of  insufficiency  in  the  amount  of  means  to  travel,  caused  by 
a  rush  of  travel  not  reasonably  to  be  expected  by  the  company,  would 
probably  be  excused ;  and  the  railroad  company,  like  all  other  com- 
mon carriers  of  passengers,  must  provide  those  whom  it  carries  with 
the  usual,  reasonable  accommodations  for  comfort  in  traveling,  in- 
cluding seats.  This  is  too  well  established  to  need  citation  of  author- 
ities. 


Ch.   1)  THE    CONDUCT   OF   TRANSPORTATION.  87 

When  this  plaintiff,  desiring  to  take  passage  to  Wayzata,  found  one 
of  defendant's  regular  passenger  trains  about  to  start  for  that  place, 
he  had  a  right  to  enter  it,  assuming  that  the  defendant  had  done  its 
duty  in  providing  sufficient  and  suitable  accommodations  for  all  hav- 
ing occasion  to  become  passengers  on  the  train.  The  train  started, 
and  had  reached  a  high  rate  of  speed,  before  he  learned  that  there 
was  not  sufficient  seats.  When  he  learned  that  he  could  get  no  seat, 
he  had  a  right  to  elect  either  to  accept  such  accommodations  as  were 
offered  and  pay  the  fare,  or  to  refuse  to  pay  the  fare  unless  he  could 
have  the  accommodations  to  which  a  passenger  is  entitled.  If  he 
elected  the  latter  course,  then  (inasmuch  as  he  was  not  entitled  to  the 
passage,  even  though  no  seat  was  provided  him,  without  paying  fare) 
it  was  his  duty  to  leave  the  train  on  the  first  reasonable  opportunity 
afforded  him.  He  could  not  be  expected  to  leave  the  train  while  in 
motion.  A  reasonable  opportunity  to  leave  it,  would  have  been  the 
stopping  it  in  a  suitable  and  reasonable  place.  As  he  had  a  right  to 
refuse  to  pay  fare  unless  a  seat  was  provided  him,  he  did  not  become 
wrongfully  on  the  train  by  so  refusing.  He  could  become  a  tres- 
passer only  by  refusing  to  leave  the  train,  on  a  reasonable  opportunity 
being  afforded.  Such  opportunity  the  defendant  was  bound  to  afford 
unless  it  chose  to  carry  him  without  fare.  It  was  the  defendant's,  not 
the  plaintiff's,  fault  that  a  seat  was  not  provided. 

The  case  differs  from  the  Wyman  Case.  For  in  that  case  the  re- 
fusal to  pay  fare  was  wrongful ;  in  this,  the  refusal,  unless  a  seat  was 
provided  him,  was  rightful.  In  that  case  the  plaintiff,  by  the  refusal, 
became  a  trespasser ;  in  this,  he  did  not.  This  case  is  somewhat  an- 
alogous to  Maples  v.  Railroad  Co.,  38  Conn.  557,  9  Am.  Rep.  434,  in 
which  it  was  laid  down  that  a  railroad  company,  having  a  right  to 
eject  from  its  train  one  not  a  trespasser,  must  do  so  at  some  regular 
station  on  its  road.  That  is  a  reasonable  rule,  and  that  the  decision 
was  in  accordance  with  the  general  rule  was  recognized  by  this  court 
in  the  Wyman  Case.  See,  also,  Gallena  v.  Railroad  Co.  (C.  C.)  13 
Fed.  116.     Order  reversed.^' 

36  The  statement  of  facts  is  omitted. 

^PP  also  St  Louis  etc,  R.  Co.  v.  Leigh,  45  Ark.  36S,  55  Am.  Rep.  558 
(lis?)  ;'G?kh'm'^r  Manhattan  Ry.  Co  1^9  ^  Y.  337,  43  ^^  E  017  (IS^T 
For  duty  to  heat  car,  see  Taylor  v.  Wabash  Co.  (Mo.)  38  S.  ^.304,  42  L.  R.  A. 
110  (189G). 


88  THE  carrier's  undertaking.  (Part  2 


SECTION   7.— TRANSPORTATION   NOT   WITHIN   THE 
CONTRACT  OF  CARRIAGE 

I.  Without  Acceptaxcu 


FORD  V.  MITCHELL. 
(Supreme  Court  of  Indiana,  1SG3.    21  Ind.  54.) 

This  was  an  action  against  a  common  carrier  by  steamboat  for 
failure  to  deliver  a  box  of  dry  goods.  The  issues  were  submitted  to 
the  court  who  found  specially  that  the  plaintiff  had  caused  the  box  in 
question  together  with  another  box  to  be  placed  on  board  the  steam- 
boat when  she  was  ready  to  make  her  trip ;  that  the  boxes  were  re- 
ceived by  the  deck  hands  in  such  manner  that  the  proper  officers  of  the 
boat  to  receive  freight  must  with  reasonable  attention  and  diligence 
have  known  of  them;  and  that  though  the  other  box  was  duly  de- 
Hvered,  the  box  sued  for  was  never  delivered.  Judgment  for  plain- 
tiff.    Defendant  appeals. 

Davison,  J."  *  *  *  fhe  court  do  not  find  that  the  deck  hands 
were  authorized  to  receive  freight,  nor  does  it  appear  that  the  box  was 
delivered  pursuant  to  any  special  contract  or  usage.  But  it  did,  in 
effect,  find  that  the  manner  of  the  reception  of  the  box,  by  the  deck 
hands,  was  such,  that  the  officers,  whose  duty  it  was  to  receive  goods 
for  transportation,  must,  if  they  had  exercised  reasonable  attention, 
care  and  diligence,  have  known  that  the  box  was  in  the  boat,  and  have 
received  it.  This  finding  is  not,  it  seems  to  us,  sufficient  to  charge  the 
carrier.  No  special  contract  or  usage,  applicable  to  the  case,  having 
been  found,  it  should  appear,  affirmatively,  that  he  or  his  agents,  for 
the  reception  of  freight,  had  been  expressly  notified  of  the  deposit  of 
the  box  in  his  steamboat. 

This  conclusion  is  fully  sustained  by  the  authorities  to  which  we 
have  referred.  And,  as  no  such  notice  has,  in  this  instance,  been 
found  by  the  court,  the  findings  do  not  support  the  judgment.  *  *  * 
Judgment  reversed. ^^ 

3  7  The  statement  is  based  on  facts  stated  in  the  opinion.  Part  of  the  opin- 
ion has  been  omitted. 

3  8  Compare  Siegrist  v.  Arnot,  S(3  Mo.  200,  56  Am.  Rep.  424  (1885). 


Ch.   1)  THE    CONDUCT   OF  TRANSPORTATION.  89- 

DALTON'S  ADAI'R  v.  LOUISVILLE  &  N.  R.  CO. 

(Court  of  Appeals  of  Kentucky,  1900.    56  S.  W.  6.57,  22  Ky.  Law  Rep.  97.) 

HoBSON^  J.  Appellant  filed  this  suit  to  recover  of  appellee  for  the 
loss  of  the  life  of  his  intestate,  and,  a  demurrer  having  been  sustained 
to  his  petition  and  his  action  dismissed,  has  appealed  to  this  court.  He 
alleges  that  his  intestate  boarded  or  entered  at  Glendale,  Ky.,  a  train 
of  appellee  usually  employed  in  the  transportation  of  freight,  and  com- 
monly known  as  a  ''freight  train" ;  that  this  train  was  proceeding 
southward ;  that  the  fact  that  his  intestate  boarded  this  south-bound 
train,  and  was  being  carried  on  the  train,  was  well  known  to  appellee's 
agents  and  servants  in  charge  of  it;  that  about  ten  miles  south  of 
where  he  boarded  the  train,  and  after  it  had  passed  two  or  more  local 
stations,  it  collided  with  another  freight  train,  going  north,  by  reason 
of  the  fact  that  the  north-bound  train  had  disobeyed  its  orders,  and 
failed  to  stop  at  a  station  which  it  had  just  passed,  where  it  was  ordered 
by  the  train  dispatcher  to  take  the  siding  until  the  south-bound  train 
passed  it ;  and  that  in  the  collision  his  intestate  was  killed. 

As  the  petition  alleges  that  the  train  he  was  on  was  one  that  was 
usually  employed  in  the  transportation  of  freight,  and  commonly 
known  as  a  "freight  train,"  containing  no  averment  that  it  carried 
passengers,  it  must  be  inferred  that  the  train  was  not  one  on  which 
passengers  were  carried ;  and  as  it  is  averred  that  plaintiff  boarded  the 
train  at  Glendale,  and  that  the  servants  of  appellee  knew  he  was  on 
the  train,  and  permitted  him  to  remain  on  it  until  it  passed  two  local 
stations,  there  being  no  averment  that  he  paid  fare  or  had  any  right 
on  the  train,  it  must  be  inferred  that  he  was  on  a  freight  train  without 
right,  and  by  the  sufferance  of  appellee's  servants  in  charge  of  it. 

It  is  earnestly  insisted  for  appellant  that,  notwithstanding  this,  he 
may  recover,  because  of  the  gross  negligence  of  appellee  in  allowing 
the  two  trains  to  collide.  But  the  trouble  with  this  is  that  the  appellee 
owed  appellant  no  duty  to  carry  him  safely;  that  he  took  the  risks  of 
the  journey  when  he  rode  upon  its  freight  train  in  this  way.  The  only 
obligation  appellant  owed  to  him  was  not  to  injure  him  after  knowl- 
edge of  his  danger. 

There  is  no  allegation  that  anything  was  omitted  which  might  have 
been  done  for  the  intestate's  safety  after  the  danger  was  discovered, 
and  the  court  properly  sustained  a  demurrer  to  the  petition.  Duff  v. 
Railroad  Co.,  2  Am.  &  Eng.  Ry.  Cas.  1 ;  Railroad  Co.  v.  Burnsed,  TO' 
Miss.  437,  12  South.  958,  35  Am.  St.  Rep.  656 ;  Everhart  v.  Railroad 
Company.  78  Ind.  292,  41  Am.  Rep.  567;  Eaton  v.  Railroad  Co.,  57 
N.  Y.  382,  15  Am.  Rep.  513;  Condran  v.  Railway  Co.,  14  C.  C.  A. 
506,  67  Fed.  522,  28  L.  R.  A.  749,  and  note;  Railroad  Co.  v.  Hailey, 
94  Tenn.  383,  29  S.  W.  367,  27  L.  R.  A.  549.     Judgment  affirmed.^^ 

3  9  In  Claiborne  v.  Mo.,  etc.,  Co..  21  Tex.  Civ.  App.  648.  53  S.  W.  837,  57  S. 
W.  336  (1900),  an  action  by  a  trespasser,  who  testified  that,  while  he  was- 


90  THE    CARKIER'S   UNDERTAKING.  (Part  2 


ILLINOIS  CENT.  R.  CO.  v.  O'KEEFE. 

(Supreme  Court  of  Illinois,  1897.     IGS  111.  115.  48  N.  E.  294,  39  L.  R.  A.  148, 

Gl  Am.   St.  Rep.  G8.) 

Action  on  the  case  by  an  administratrix  to  recover  for  the  death  of 
her  intestate,  O'Keefe.  O'Keefe  lived  at  Anna,  not  far  from  the 
railroad.  He  held  a  free  pass.  The  evidence  showed  that  one  morn- 
ing, as  a  vestibuled  train  was  leaving  the  station,  he  ran  out  of  his 
house  toward  the  track  and  boarded  the  train  after  it  had  left  the  sta- 
tion and  while  it  was  moving  at  the  rate  of  three  or  four  miles  an 
hour.  He  got  on  at  the  front  platform  of  the  baggage  car  just  be- 
hind the  tender.  The  vestibule  doors  at  all  other  car  platforms  were 
closed.  The  conductor,  after  going  through  the  train  from  front  to 
rear,  came  forward  to  the  baggage  car  to  see  about  the  person  who  had 
got  on  the  front  platform.  When  the  conductor  entered  the  baggage 
car  he  saw  a  freight  train  coming  on  the  same  track,  and  jumped  off 
through  the  side  door.  O'Keefe,  still  on  the  platform  of  the  baggage 
car,  was  killed  in  the  ensuing  collision.  The  collision  was  caused  by 
defendant's  negligence  in  the  transmission  of  orders. 

Cartvvright,  J.^°  *  *  *  /^j-  ^i^g  close  of  the  evidence  the  de- 
fendant asked  the  court  to  instruct  the  jury  that  such  evidence  was 
not  sufficient  to  authorize  a  verdict  for  the  plaintiff",  and  that  they 
should  find  the  defendant  not  guilty.  The  instruction  was  refused, 
and  the  defendant  excepted.     *     *     * 

The  question  is  whether  these  facts  fairly  tend  to  establish  the 
relation  of  passenger  and  carrier  between  O'Keefe  and  the  defendant 
by  showing  that  he  had  put  himself  in  the  care  of  the  defendant  as  a 
passenger,  and  had  been  expressly  or  impliedly  received  and  accepted 
as  such  by  the  defendant  through  any  authorized  agent.  We  think 
that  they  do  not.  He  did  not  go  upon  the  train  at  the  station  pro- 
vided for  the  reception  of  passengers,  and  did  not  take  any  place 
provided   for   the   reception,   accommodation,   or   carriage  of   passen- 

seen  to  be  climbing  over  tlie  tender  and  the  train  was  in  motion,  the  engineer 
negligently  caused  the  engine  to  lurch  forward,  so  that  he  was  thrown  to 
the  ground,  it  was  held  that  for  such  negligence  the  railroad  would  be  lia- 
ble. Conner,  J.,  said:  "The  principle  that  every  person  shall  so  use  or  cause 
to  be  used  his  owu  property,  and  shall  so  conduct  or  cause  to  be  conducted  his 
own  business,  however  legitimate,  as  to  not  unnecessarily  injure  another,  is 
sound  as  matter  of  universal  application.  If  the  engineer  in  fact  saw  ap- 
pellant, and  knew  of  his  perilous  i:)Osition,  if  it  was  one,  and  Icnew  of  the  dan- 
ger of  causing  a  sudden  jerk  or  increase  in  the  speed  of  his  engine,  consid- 
erations of  humanity  dictated  that  he  should  at  least  use  ordinary  care  to 
avoid  the  performance  of  an  act  that  it  was  alleged  he  knew  would  probably 
result  in  injury  to  appellant,  even  though  such  act,  under  ordinary  circum- 
stances, was  proper,  usual,  or  customary  in  the  'proper  operation  of  the 
train.'  "  Ace.  L.  &  N.  R.  Co.  v.  Kemery's  Adm'r,  66  S.  W.  20,  23  Ky.  Law  Rep. 
1734  (1902). 

4  0  The  statement  of  facts  has  been  rewritt-en,  and  parts  of  the  opinions 
omitted. 


Ch.    1)  THE    CONDUCT   OF   TRANSPORTATION.  91 

gers.  He  did  not  comply  with  any  of  the  ordinary  customs  under 
which  defendant  held  itself  out  as  ready  to  receive  and  carry  pas- 
sengers, or  under  which  they  are  received  or  carried. 

It  is  said  that  he  no  doubt  tried  to  open  the  baggage  car  door,  and 
the  inference  intended  is  that  he  tried  to  put  himself  in  charge  of  de- 
fendant as  a  passenger  in  a  proper  place.  There  is  no  evidence  of 
the  supposed  fact,  and,  if  there  were,  it  could  make  no  difference. 
It  will  certainly  not  be  claimed  that  defendant  was  bound  to  have  the 
baggage  car  door  open  so  as  to  give  access  to  its  passenger  coaches 
by  way  of  the  baggage  car;  but,  even  if  that  were  a  wrong  to  him,  he 
could  not  become  a  passenger  by  attempting  to  get  in  that  door  any 
more  than  if  he  had  attempted  to  open  one  of  the  vestibule  doors, 
which  was  locked,  and  had  failed.  He  had  not  put  himself  in  the  care 
of  the  defendant  as  a  passenger.  Of  course,  the  fact  that  the  engineer 
knew  that  deceased  climbed  upon  the  train  would  not  make  him  a 
passenger,  since  an  engineer  is  not  authorized  to  act  for  the  defendant 
in  such  a  matter,  or  to  accept  passengers. 

Nor  do  we  think  that  the  mere  fact  of  the  conductor  knowing  that 
some  one  had  boarded  the  moving  train  on  the  platform  between  the 
tender  and  baggage  car,  and  might  still  be  there,  is  evidence  tending 
to  show  that  defendant  accepted  him  as  a  passenger.  The  conductor 
did  not  know  who  he  was,  or  what  he  was  there  for.  whether  as  a 
passenger  or  otherwise.  As  conductor,  he  performed  the  usual  duties 
after  leaving  the  station,  and  had  not  reached  this  platform  next  the 
tender  when  the  accident  occurred.  He  had  done  nothing  in  the  mat- 
ter one  way  or  the  other. 

The  train  was  moving  slowly  when  O'Keefe  climbed  on,  but  that 
fact  is  only  material  on  the  question  of  negligence  on  his  part  in 
boarding  a  moving  train.  The  train  had  left  the  station,  and  there 
would  be  no  difference,  so  far  as  creating  a  relation  of  passenger  and 
carrier  was  concerned,  whether  he  got  on  there  or  at  some  other  place 
between  stations  where  the  train  was  moving  slowly.  Of  course,  he 
might  have  ridden  on  the  platform  in  safety  but  for  the  collision,  and 
so,  also,  he  might  on  the  engine  or  tender  or  elsewhere  on  the  train 
where  passengers  are  not  carried.  That  fact  concerns  only  the  ques- 
tion of  negligence,  and  is  not  material  on  the  question  whether  he  be- 
came a  passenger. 

As  we  have  concluded  that  there  was  no  evidence  tending  to  estab- 
lish one  necessary  element  for  a  recovery— that  the  deceased  was  a 
passenger  on  defendant's  train— it  follows  that  for  such  failure  of 
proof  the  instruction  asked  should  have  been  given.  The  judgments 
of  the  appellate  court  and  circuit  court  are  reversed,  and  the  cause  is 
remanded  to  the  circuit  court.    Reversed  and  remanded. 

Carter.  J.  (dissenting).  *  *  *  The  jury  had  the  right  to  find 
from  all  the  circumstances,  including  the  fact  that,  after  the  conductor 
saw  him  get  on  the  front  end  of  the  baggage  car,  he  went  from  the 
other  end  of  that  car  through  the  train,  taking  the  fares  of  passengers, 


92  .  THE  carrier's  undertaking.  (Part  2 

without  saying  anything  to  O'Keefe,  and  without  interfering  with 
him  in  any  way,  that  he  did  not  object  to  his  riding  in  that  way;  that 
is,  to  find  imphed  consent  on  the  part  of  the  company.     ^'     *     *  *^ 


FIRST  XAT.  BANK  OF  GREENFIELD  v.  ^lARIETTA  & 

C.  R.  CO. 

(Supreme  Court  of  Ohio,  1870.     20  Ohio  St.  2.j0,  5  Am.  Rep.  (j.">r,.) 

The  plaintiff  alleged  in  its  petition  that  it  was  the  owner  of  a  pack- 
age containing  $4,000  in  United  States  notes,  which  it  delivered  to 
its  agent,  McElroy,  to  take  to  Cincinnati,  that  McElroy  for  that  pur- 
pose became  a  passenger  in  defendant's  train  with  the  money  on  his 
person ;  and  that  by  the  defendant's  negligence  the  train  was  wrecked 
and  burned,  McElroy  killed,  and  the  money  destroyed.  On  demurrer,, 
defendant  had  judgment.     Plaintiff  filed  a  petition  in  error. 

ScoTT,  J.*-  If  the  facts  stated  in  the  petition  show  the  defendant  to 
have  been  guilty  of  a  breach  of  contract,  or  derelict  in  respect  to  a 
legal  duty,  we  think  the  plaintiff's  claim  cannot  be  resisted  on  the 
ground  that  the  contract  was  made,  not  with  the  plaintiff,  but  with  an 
agent  acting  in  his  own  name,  or  that  the  supposed  duty  was  owing  to 
the  agent  and  not  to  his  principal.  The  bank  had  the  same  right  to 
send  the  notes  in  controversy  by  McElroy  as  a  special  agent,  as  it 
would  to  have  carried  them  over  the  same  road  under  the  same  cir- 
cumstances through  its  president,  cashier,  or  any  other  officer;  and 
McElroy  had  the  same  right  to  carry  the  notes  for  the  bank,  as  for 
himself,  had  they  been  his  property.     *     *     * 

In  the  able  and  elaborate  argument  of  counsel  for  plaintiff,  the  riglit 
to  recover  is  based  upon  two  distinct  grounds : 

1.  That  the  plaintiff's  property  being  at  the  time  of  its  destruc- 
tion where  it  was  lawfully — that  is,  in  the  exercise  by  the  plaintiff  of 
a  legal  right  in  reference  to  it — and  being,  without  any  fault  of  the 
plaintiff,  destroyed  by  the  negligence  of  the  defendant,  in  the  manage- 
ment of  its  own  property,  a  right  of  action  accrues  for  the  damage,  by 
virtue  of  the  maxim,  "sic  utere  tuo,  ut  alienum  non  loedas." 

2.  That  the  duty  which  the  defendant,  as  a  common  carrier  of  pas- 
sengers, owed  to  IMcElroy  to  exercise  care  and  skill  in  transporting 

41  See  Carrier  aud  Passenger,  by  Professor  J.  H.  Beale,  19  Ilarv.  Law  Rev. 
250,  2.5&-2G2. 

In  Railroad  v.  Bogle,  101  Tenn.  40.  46  S.  W.  760  (189S),  a  passenger  on  n 
cattle  train,  stopped  on  a  siding,  left  the  caboose  to  look  after  his  cattle.  The 
train  moved,  and,  for  fear  he  could  not  reach  the  caboose,  he  got  upon  the 
engine,  but  jumped  off  at  the  order  of  the  engineer  and  was  hurt.  It  was  held 
that  when  on  the  engine  he  was  not  entitled  to  the  care  due  a  passenger,  aud 
that  no  recovery  could  be  had,  except  for  willful,  wanton,  or  intentional  in- 
jury.    Compare  Whitley  v.  So.  Ry.  Co.,  122  N.  C.  987,  20  S.  E.  783  (1898). 

*2  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opiniou 
omitted. 


Ch.   1)  THE    CONDUCT   OF   TRANSPORTATION.  93 

him  safely,  extends  to  all  articles  of  value  which,  at  the  time,  he  had 
lawfully  in  his  possession,  or  about  his  person,  so  as  to  entitle  him,  or 
its  owner,  in  case  of  injury  resulting  from  a  breach  of  that  duty,  to 
recover  compensation  for  the  damage  done  to  such  property. 

As  to  the  first  of  these  propositions,  we  do  not  call  in  question  the 
justice  or  soundness  of  the  maxim  upon  which  it  is  supposed  to  rest. 
The  only  doubt  is  as  to  its  proper  application  to  the  present  case. 
*  *  *  Damage  resulting  from  the  negligence  of  another  will  not 
in  all  cases  constitute  a  cause  of  action.  Should  A.  through  negli- 
gence burn  his  own  house,  and  with  it  the  property  of  B.,  placed 
therein  without  the  knowledge  or  consent  of  A.,  we  apprehend  B. 
could  not  hold  A.  liable  for  the  loss.  We  can  not,  therefore,  ignore 
the  fact,  that  the  carrying  of  the  money  in  defendant's  car  was  an 
essential  element  in  the  circumstances  occasioning  the  loss,  nor  the 
fact  that  it  was  so  carried  by  a  person  whose  only  right  to  be  there  was 
in  virtue  of  his  character  as  a  passenger.  To  ascertain  the  rights  of 
McElroy  as  such  passenger,  and  the  obligations  and  liabilities  of  the 
defendant  as  a  common  carrier,  in  respect  of  the  property  destroyed, 
necessarily  requires  a  consideration  of  the  second  proposition,  which 
bases  the  right  to  a  recovery  on  the  relation  subsisting  between  Mc- 
Elroy and  the  defendant,  at  the  time  of  the  loss,  and  the  duties  and  ob- 
ligations which  that  relation  imposed  on  the  defendant. 

As  we  have  said,  the  relation  subsisting  between  McElroy  and  the 
defendant  was  that  of  passenger  and  common  carrier,  and  it  was  in 
virtue  of  that  relation  that  plaintifif's  money  was  brought  into  defend- 
ant's car,  and  became  exposed  to  the  peril  which  caused  its  loss. 
What,  then,  was  the  contract  between  the  defendant,  as  a  common  car- 
rier of  passengers,  and  McElroy,  and  what  was  the  extent  of  the  ob- 
ligations imposed  on  the  defendant  by  law,  in  virtue  of  that  contract? 

Upon  well-settled  principles  the  defendant  became  bound  in  con- 
sideration of  the  fare  paid  by  McElroy,  to  use  the  highest  degree  of 
diligence  and  care  in  transporting  him  to  his  place  of  destination. 
And  this  contract  for  the  carriage  of  his  person  necessarily  included 
the  wearing  apparel  which  accompanied  his  person,  such  reasonable 
sum  of  money  as  might  be  in  good  faith  carried  wth  him  for  the  ex- 
penses of  the  journey,  together  with  all  such  articles,  to  a  reasonable 
extent,  at  least,  as  are  ordinarily  carried  or  worn  upon  the  person  for 
purposes  of  personal  use,  convenience,  or  ornament;  and  we  agree 
with  counsel  for  plaintiff  that  the  contract  also  included  the  carriage  of 
"his  baggage  delivered  to  the  defendant  as  such  to  be  carried,  to  the 
extent  of  an  ordinary  and  reasonable  wardrobe  for  one  in  his  station 
in  life,  together  with  such  articles  as  are  usually  found  in  the  para- 
phernalia of  a  traveler." 

But  the  notes  for  the  loss  of  which  this  action  is  brought  can  nei- 
ther be  regarded  as  a  part  of  the  passenger's  baggage,  nor  as  money 
intended  to  defray  the  expenses  of  the  journey.  The  statements  of 
the  petition  show  that  the  notes  were  simply  being  transmitted,  for 


94  THE  carrier's  undertaking.  (Part  2 

business  purposes,  from  Greenfield  to  Cincinnati,  and  were  not  intended 
to  be  used  by  the  passenger  for  defraying  the  expenses  of  his  journey 
or  otherwise.  The  trip  may  have  been  undertaken  on  account  of  the 
money,  but  the  money  was  not  carried  on  account  of  the  trip.  Nor 
was  the  defendant  entrusted  with  the  custody  of  these  notes,  or  spe- 
cially charged  with  any  care  or  oversight  in  respect  to  them.  They 
remained  in  the  exclusive  custody  and  control  of  McElroy.  And  as 
they  were  clearly  not  included  in  the  contract  for  the  transportation 
of  the  passenger  and  his  baggage,  and  were  not  subjected  to  the  cus- 
tody of  the  carrier,  it  is  difficult  to  see  how  he  can  be  held  liable  for  a 
want  of  care  over  them. 

We  do  not  call  in  question  the  right  of  a  passenger  to  carry  about 
his  person  for  the  mere  purpose  of  transportation,  large  sums  of 
money,  or  small  parcels  of  great  value,  without  communicating  the 
fact  to  the  carrier,  or  paying  anything  for  their  transportation.  But 
he  can  only  do  so  at  his  own  risk,  in  so  far  as  the  acts  of  third  per- 
sons, or  even  ordinary  negligence  on  the  part  of  the  carrier  or  his  serv- 
ants is  concerned.  For  this  secret  method  of  transportation  would  be 
a  fraud  upon  the  carrier,  if  he  could  thereby  be  subjected  to  an  un- 
limited liability  for  the  value  of  parcels  never  delivered  to  him  for 
transportation,  and  of  which  he  has  no  knowledge,  and  has  therefore 
no  opportunity  to  demand  compensation  for  the  risk  incurred.  Xo  one 
could  reasonably  suppose  that  a  liability  which  might  extend  indefi- 
nitely in  amount  would  be  gratuitously  assumed,  even  though  the  dan- 
ger to  be  apprehended  should  arise  from  the  inadvertent  negligence 
of  the  carrier  himself.     *     *     * 

It  is  claimed  in  argument  that  a  common  carrier  of  passengers  has 
no  reason  to  complain  if  he  be  held  responsible  for  a  loss  of  property 
resulting  as  a  direct  consequence  from  the  want  of  that  degree  of 
care  which  the  law  requires  him  to  exercise  toward  the  persons  of  his 
passengers.  But  in  the  case  of  a  breach  of  contract,  the  delinquent 
party  can  only  be  held  liable  for  such  damages  as  are  so  far  the  nat- 
ural and  direct  result  of  the  breach  that  they  may  reasonably  be  pre- 
sumed to  have  been  in  the  contemplation  of  the  parties  when  the 
contract  was  entered  into.  Now  admitting  the  breach  of  contract 
with  AIcElroy,  the  question  is  as  to  the  extent  of  the  liability  in- 
curred. It  would  seem  from  the  petition  that  the  defendant  dealt 
with  McElroy  only  as  an  ordinary  passenger,  seeking  transportation 
for  himself  and  ordinary  baggage.  He  could  not  reasonably  suppose 
that  the  defendant,  by  selling  him  a  ticket  and  agreeing  to  carry  him 
and  his  baggage  with  due  care,  contemplated  incurring  a  liability  in 
respect  to  a  large  sum  of  money,  of  which  defendant  had  no  knowl- 
edge, and  which  he  was  carrying  solely  for  the  purpose  of  transfer- 
ring it  from  one  point  to  another. 

The  case  made  by  the  petition  is  not  one  in  which  the  plaintiff's 
property  has  been  destroyed  by  an  act  of  positive  misfeasance  in  the 
nature  of  a  forcible  trespass.     The  defendant  is  not  charged  with  its 


Ch.  1)  THE  CONDUCT  OF  TRANSPORTATION.  95 

wilful  destruction,  nor  with  such  gross  negligence  as  would  approxi- 
mate to  wantonness.  Both  the  petition  and  the  argument  of  counsel 
proceed  upon  the  theory  that  any  negligence  which  would  render  a 
carrier  of  passengers  liable  for  personal  injury  sustained  by  a  pas- 
senger, will  make  him,  at  the  same  time,  liable  for  all  damages  re- 
sulting therefrom  to  any  property  which  the  passenger  may  have  law- 
fully with  him  or  about  his  person  at  the  time.  The  doctrine  thus 
broadly  stated  is,  we  think,  unsustained  by  authority,  and  cannot  be 
maintained  upon  principle.  In  effect,  it  ignores  the  distinction  be- 
tween the  property  covered  by  the  contract  for  transportation  and  that 
which  is  outside  of  it.     *     *     *     Judgment  affirmed.'*^ 


II.  Ignorance,  AIistake,   and   Fraud 


LITTLE  V.  BOSTON  &  M.  R.  R. 
(Supreme  Judicial  Court  of  Maine,  1876.     60  Jle.  239.) 

Case  against  the  defendants  as  common  carriers,  for  the  loss  of  a 
box  containing  jewelry  goods  of  the  alleged  value  of  $1,T00,  received 
by  the  defendants  at  Boston,  November  28,  1871,  marked  "H.  A.  Os- 
good, Lewiston,  Maine." 

Plea,  general  issue. 

The  evidence  showed  that  the  box  declared  on,  in  good  order  and 
plainly  directed,  was  delivered  in  Boston  to  the  plaintiff's,  doing  busi- 
ness under  the  name  of  the  Kennebec  &  Boston  Express,  by  the  New 
,  York  express  company  to  whom  the  plaintiffs  paid  the  expense  of  40 
cents,  the  smallness  of  the  charge  indicating  that  it  contained  goods 
of  ordinary  value  only;  that  the  plaintiffs  delivered  it  to  the  defend- 
ant company  in  Boston,  to  be  carried  with  other  freight  at  the  rate  of 
$5  per  ton;  that  neither  the  plaintiffs  nor  the  defendants  knew  what 
the  box  contained ;  that  the  custom  of  the  plaintiffs  was  to  send  their 
valuable  articles  in  a  strong  chest  by  an  express  messenger ;  that  the 
charge  on  this  box  was  30  cents  from  Boston  to  Lewiston ;  that  if  the 
value  had  been  known  it  would  have  been  about  $2.50 ;  that  before  the 
freight  car  arrived  at  Lewiston  the  door  of  it  was  seen  to  be  off  and 
gone,  and  when  it  arrived  there  this  box  was  missing.  The  plain- 
tiffs put  into  the  case  the  record  of  a  judgment  in  Androscoggin  coun- 
ty, rendered  February  3,  1874,  against  them  in  behalf  of  Henry  A.  Os- 

4  3  Ace  Weeks  v  N.  Y..  etc..  R.  Co.,  72  N.  Y.  50,  28  Am.  Rep.  104  (1878) :  Hen- 
derson v.  Louisville  &  N.  R.  Co.,  123  U.  S.  61,  8  Sup.  Ct  60.  31  L.  Ed  02  (1887) ; 
Knierem  v  N  Y.  C.  R.  Co.,  109  App.  Div.  709,  96  N.  Y.  Supp.  602  (lOO.j) ;  Levins 
V  N  Y  etc  R.  Co..  183  Mass.  17.5,  66  N.  E.  803,  97  Am.  St.  Rep.  434  (1903). 
money  stolen' by  railroad  iwrter.  See,  also,  Hillis  v.  Chicago,  etc.,  Co.,  72  Iowa, 
228,  33  N.  W.  643  (1887). 


96  THE   CARKIER-S   UNDERTAKING.  (Part  2 

good,  on  a  verdict  found  at  the  September  term  in  1872  for  $1G95 ; 
cost  taxed  $63.77. 

The  case  was  submitted  to  the  full  court,  to  render  such  judgment 
as  the  law  and  facts  require,  and  to  assess  the  damages. 

Appleton,  C.  J.**  *  *  *  fi^Q  defendants  are  common  car- 
riers, and  subject  to  the  responsibility  and  liabilities  imposed  upon 
them  as  such.  "The  common  carrier  is  responsible  for  the  loss  of  a 
box  or  parcel,  though  he  be  ignorant  of  its  contents,  or  though  those 
■contents  be  ever  so  valuable,  unless  he  make  a  special  acceptance." 
2  Kent,  Com.  603 ;  Sager  v.  P.,  S.  &  P.  Railroad,  31  Me.  228,  1  Am. 
Rep.  659.  Such  is  the  general  rule ;  but  if  the  owner  is  guilty  of 
fraud  or  imposition  as  by  fraudulently  concealing  the  value  of  the  par- 
cel, or  in  any  way  leading  the  carrier  to  regard  it  as  of  little  value, 
he  cannot  hold  him  liable  for  the  goods  lost.  These  plaintiffs  cannot 
be  deemed  guilty  of  fraud  in  concealing  the  value  of  the  box  in  con- 
troversy, when  its  contents  were  unknown. 

The  freight  may  depend  upon  the  value  of  the  article  to  be  car- 
ried. When  the  article  is  of  extraordinary  or  unusual  value,  the 
carrier  would  well  be  entitled  to  a  higher  rate  of  compensation,  in- 
lasmuch  as  he  might  be  reasonably  held  to  a  greater  degree  of  care. 
The  carrier  therefore  has  a  right  to  inquire  as  to  the  value  of  the  ar- 
ticle entrusted  to  him  for  carriage,  and  the  owner  is  bound  to  answer 
truly.  If  he  answers  falsely,  he  will  be  boluid  by  such  answer.  But 
if  no  inquiries  are  made,  he  is  not  required,  in  the  absence  of  fraud, 
to  state  the  value  of  the  goods  delivered  to  the  carrier.  Phillips  v. 
Earle.  8  Pick.  (Mass.)  182;  Brook  v.  Pickwick,  4  Bing.  218.  The 
defendants,  however,  omitted  the  precaution  to  make  any  inquiry  as 
to  value ;  and  it  was  for  them  to  do  it.  Walker  v.  Jackson,  10  Alees. 
&  W.  168 ;  Angell  on  Carriers,  §  264.     *     *     * 

The  defendants'  liability  is  fully  established.  The  measure  of  dam- 
age is  the  value  of  the  goods  at  the  place  of  delivery.  Perkins  v.  P., 
S.  &  P.  Railroad,  47  Me.  573,  74  Am.  Dec.  507 ;  2  Redfield  on  Rail- 
roads (5th  Ed.)  198.  The  plaintiffs  show  by  the  records  of  the  court, 
and  by  other  evidence,  that  judgments  have  been  rendered  against 
them  in  the  courts  of  this  state  for  the  value  of  the  goods  in  the  box 
lost  by  the  defendants.  We  must  presume  that  the  damages  in  those 
cases  were  assessed  upon  legal  principles.  They  will,  therefore,  with 
interest,  constitute  the  amount  for  which  judgment  must  be  rendered 
in  favor  of  these  plaintiffs. 

Judgment  for  the  plaintiffs. ^^ 

4*  Parts  of  the  opinion  are  omitted. 

45  "The  case  of  Kenrig  v.  Eggleston,  Aleyn,  93,  was  decided  in  1649.  The 
plaintiff  delivered  a  box  to  the  porter  of  the  carrier,  saying,  'there  was  a 
booli  and  tobacco  in  tlie  l)ox,'  when  in  truth  it  contained  £100  in  money,  be- 
sides. Roll,  J.,  thought  the  carrier  was  nevertheless  liable  for  a  loss  by  rob- 
bery;  'but  in  respect  of  the  intended  cheat  to  the  carrier,  he  told  the  jury 
they  might  consider  him  in  damages.'  The  jury,  however,  found  the  whole 
sum  (abating  the  carriage)  for  the  plaintiff,  quod  durum  videbatui-  circum- 


Ch.l) 


THE   CONDUCT   OF   TRANSPORTATION.  97 


EVERETT  V.  SOUTHERN  EXPRESS  CO. 

(Supreme  Court  of  Georgia,  1S72.     46  Ga.  303.) 

IMcCay,  J.*«  *  *  *  The  judgment  of  the  court  granting  the 
new  trial  is  excepted  to ;  not  the  reasons  he  gave,  nor  the  grounds  he 
put  it  upon,  but  the  order,  decision  or  judgment  of  the  court,  to  wit: 
setting  aside  the  verdict  [for  plaintiff]  and  granting  a  new  trial.  If 
that  judgment  was  good  and  right,  for  any  reason  contained  in  the 
record,  it  ought  to  stand.     The  judgment  is  one  thing,  the  reasons 

stantibus.  In  Gibbon  v.  Paynton.  4  Burr.  2298.  Lord  Mansfield  said,  this  was 
a  case  of  fraud,  and  he  'should  have  agreed  in  opinion  with  the  circum- 
stantibus.'  In  Tyly  v.  Morrice,  Garth.  485,  two  bags  of  money  sealed  up  were 
delivered  to  the  carrier,  saying  they  contained  £200,  and  he  gave  a  receipt 
for  the  money.  In  truth  the  bags  contained  £450,  and  the  carrier,  having  been 
robbed,  paid  the  £200;  and  in  this  action  brought  to  recover  the  balance,  the 
Chief  Justice  told  the  jury  that  'since  the  plaintiffs  had  taken  this  course 
to  defraud  the  carrier  of  his  reward,  they  should  find  for  the  defendant.' 
And  the  same  point  was  decided  in  another  action  against  the  same  carrier. 
In  Gibbon  v.  Paynton.  4  Burr.  229S.  £100  in  money  was  hid  in  hay  in  an  old 
nail  bag,  which  fact  the  plaintiff  concealed  from  the  carrier:  and  the  money 
having  been  stolen,  the  court  held  that  this  fraud  would  discharge  the  de- 
fendant. In  the  case  of  Orange  Co.  Bank  v.  Brown.  9  Wend.  TN.  Y.]  85  [24 
Am.  Dec.  129].  the  agent  of  the  plaintiffs  put  $11,000  in  bank  bills  in  his 
trunk,  and  delivered  it  to  the  captain  of  the  steamboat  as  his  baggage.  Tlie 
court  held  that  the  term  baggage  would  only  include  money  for  the  exi>enses  of 
traveling,  and  not  a  large  sum,  as  in  this  case,  taken  for  the  mere  purpose 
of  transportation ;  and  it  was  said  that  the  conduct  of  the  plaintiff's  agent 
was  a  virtual  concealment  as  to  the  money,  that  'his  representation  of  his 
trunk  and  the  contents  as  baggage  was  not  a  fair  one.  and  was  calculated  to 
deceive  the  captain.'  The  owner  is  not  bound  to  disclose  the  nature  or  value 
of  the  goods ;  but  if  he  is  inquired  of  by  the  carrier,  he  must  answer  truly. 
Phillips  V.  Earle,  8  Pick.  [Mass.]  182."  Bronson,  J.,  in  Hollister  v.  Nowlen, 
19  Wend.  (N.  Y.)  234,  32  Am.  Dec.  455  (1838). 

"If  any  merchant  or  merchants  contract  with  any  managing  owner  of  a 
ship  or  vessel  to  load  ujjon  freight  certain  bales  or  bundles,  or  some  other 
certain  articles,  and  the  merchants  shall  place  or  cause  to  be  placed  in  those 
packages,  bales,  bundles,  or  chests,  or  whatever  the  goods  may  be,  in  the 
midst  of  one  or  all  of  them  anything  secretly,  such  as  gold,  silver,  coin,  pearls, 
silk,  or  other  precious  goods  or  merchandise,  whatever  they  may  choose,  and 
what  may  be  within  those  packages,  bales,  bundles,  chests,  or  other  goods, 
which  the.v  have  inserted  secretly  in  them,  they  shall  not  have  told  or 
shown  when  they  loaded  the  ship  to  the  managing  owner,  or  to  the  mate,  or 
to  the  watch,  or  to  the  ship's  clerk  of  that  ship  in  which  they  have  placed 
them  [there  shall  be  no  liability  in  case  of  jettison  to  contribute  in  general 
average  for  the  value  of  the  unknown  articles].  *  *  *  still  more,  if  those 
goods  or  merchandise  above  mentioned  shall  be  lost  by  fault  of  the  managing 
owner  of  the  ship,  or  the  ship's  clerk,  they  are  not  liable  to  make  any  compen- 
sation to  him  to  whom  they  belong,  except  so  much  as  he  shall  have  made  it 
understood  when  he  put  the  goods  on  board,  because  at  times  there  are  cer- 
tain merchants  who,  if  a  man  were  to  believe  all  that  they  say  or  make  oath 
to,  in  case  that  any  package  were  lost  by  any  of  the  above  causes,  would  say 
that  in  that  package  they  had  put  valuables  that  were  worth  a  thousand  marks 
of  gold  or  silver ;  and  for  that  reason  no  one  is  responsible  to  a  merchant  ex- 
cept for  that  which  at  the  loading  of  it  he  shall  have  declared  to  one  of  the 
parties  above  enumerated.  *  *  *  "  Consulate  of  the  Sea,  c.  212.  See  Rev. 
St.  §  4281  (U.  S.  Comp.  St.  1901,  p.  2942),  post,  p.  472. 

46  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 
Green  Carb. — 7 


98  THE  carrier's  undertaking.  (Part  2 

given  for  it  another.  It  is  with  the  judgment  this  court  has  to  do. 
Ought  that  to  be  affirmed  or  reversed?  In  our  judgment  this  verdict 
is  not  sustained  by  the  evidence.  This  court  has  in  effect  decided  that 
very  thing,  when  the  case  was  before  it  at  Milledgeville,  in  37  Ga. 
688.  The  evidence  there  was  the  same  as  here,  with  the  single  ex- 
ception that  the  negro  boy  who  carried  the  box  to  the  express  office 
now  testifies  that  he  did  not  open  the  box.  The  evidence  as  to  the 
mode  in  which  this  valuable  pin  was  put  up  is  the  same. 

The  point  of  that  decision  was,  that  the  carrier  has  a  right  to  know 
the  value  of  the  article  he  is  asked  to  carry,  that  he  may  take  the 
better  precaution  to  prevent  persons  from  stealing  it  from  him,  or  to 
prevent  its  loss  from  carelessness.  An  article  of  small  value  presents 
few  temptations  to  the  thief.  The  company  may  safely  entrust  it  to 
less  trustful  agents,  and  take  less  pains  to  protect  and  preserve  it. 
Valuable  articles  ought  to  be,  and  usually  are,  put  in  a  safe  and  are 
delivered  by  the  most  trustworthy  agents  into  the  hands  of  the  con- 
signee. And  for  this  extra  care  and  risk  a  higher  price  is  charged. 
The  proof  here  shows  that  a  small  article  of  great  value  was,  either 
designedly  or  carelessly,  put  in  a  common  paper  box,  tied  up  with  a 
string,  and  its  value,  either  designedly  or  carelessly,  concealed  from 
the  knowledge  of  the  carrier.  Wlio  knows  why?  The  evidence  does 
not  show;  but  if  there  was  no  special  design — if  the  extra  charge  was 
not  the  thing  sought  to  be  got  rid  of,  the  gross  negligence  of  the  con- 
signor amounts  to  fraud.  It  misled  the  carrier ;  it  put  him  off  his 
guard.  He  had  a  gem  in  his  custody,  a  thing  to  be  specially  cared  for, 
and  he  did  not  know  it ;  and  this  want  of  knowledge  was  the  fault  of 
the  consignor.  No  person  of  ordinary  prudence  would  send  by  a 
messenger  a  valuable  article  like  this  without  special  notice  of  its 
value,  and  were  this  defendant  an  ordinary  carrier,  we  doubt  if  it 
would  be  possible  to  get  a  verdict  against  it  on  such  facts.  Unfor- 
tunately there  is  not  the  same  carefulness  to  do  only  strict  justice  in 
cases  where  rich  corporations  are  parties.  But  the  law  knows  nei- 
ther the  rich  nor  the  poor  as  such — justice  to  both  is  its  rule. 

We  feel  ourselves  bound  by  the  decision  of  this  court  in  this  case, 
in  any  view  of  it,  though  we  agree  that  it  is  right,  and  would,  were  the 
case  now  first  before  us,  give  the  same  judgment.  We  think,  there- 
fore, that  the  verdict  ought  to  have  been  set  aside  as  illegal.  Judg- 
ment affirmed.*^ 

*7See,  also.  So.  Ex.  Co.  v.  Wood.  98  Ga.  268.  25  S.  E.  436  (1896> ;  Bottnm  v. 
Charleston,  etc..  Ry.  Co..  72  vS.  C.  375.  51  S.  E.  98.5.  2  L.  R.  A.  (N.  S.)  773,  110 
Am.  St.  Rep.  610  (1905) ;  Relf  v.  Rapp  (Pa.)  3  Watts  &  S.  21,  37  Am.  Dec. 
528  (1841) ;  Hart  v.  Pa.  Co.,  112  U.  S.  331,  340.  5  Sup.  Ct.  151,  28  L.  Ed.  717 
(1884) ;  Oppenheimer  v.  U.  S.  Ex.  Co.,  post,  p.  400. 

"The  principle  upon  which  the  carrier  is  relieved  from  liability,  under  some 
of  the  decisions  of  this  court,  as  already  stated,  is  that  there  was  a  fraud 
upon  the  carrier;  but  there  is  another  good  reason:  The  carrier  did  not  un- 
dertake to  carrj'  anything  hut  household  goods ;  wearing  apparel  was  not  in- 
cluded in  the  contract ;  and  hence  the  carrier  was  only  bound  to  carry  such 
goods  as  the  shipper  represented  to  be  contained  in  the  boxes  and  bundles. 


Ch.  1)  THE    CONDUCT   OF   TRANSPORTATION.  99 

MACROW  V.  GREAT  WESTERN  RY.  CO. 

(Court  of  Queen's  Bench,  1871.     L.  R.  6  Q.  B.  612.) 

CocKBURN,  C.  J.*8  This  was  an  action  brought  by  the  plaintiff 
for  compensation  for  the  loss  of  luggage  lost  while  traveling  as  a 
passenger  on  the  defendants'  railway.  At  the  trial  before  my  Brother 
Blackburn  the  question  turned  on  how  far  the  articles  lost  came  within 
the  description  of  ordinary  passengers'  luggage.  A  verdict  passed 
for  the  plaintiff.    *    *     * 

The  plaintiff  had  recently  returned  from  Canada,  with  the  inten- 
tion of  settling  in  England,  but  had  not  yet  provided  himself  with  a 
home.  Amongst  other  articles  which  were  in  the  box  were  six  pairs 
of  sheets,  six  pairs  of  large  blankets,  and  six  large  quilts,  which  had 
formed  part  of  his  household  goods  in  Canada,  and  which  he  in- 
tended to  be  again  part  of  his  household  goods  when  he  should  have 
provided  himself  with  a  home.     *    *    * 

By  the  act  of  Parliament  by  which  the  company  is  constituted  it 
is  provided  that  passengers  by  the  railway  shall  be  entitled  to  have  a 
fixed  quantity  of  ordinary  luggage,  according  to  their  respective 
classes,  conveyed  with  them  free  of  charge.  See  9  &  10  Vict.  c.  91, 
§  63. 

The  question  for  our  decision  is  whether  the  articles  of  bedding 
hereinbefore  referred  to  can  be  considered  as  ordinary  passengers' 
luggage. 

and  which  it  contracted  to  carry."  Blandford,  J.,  in  Charleston,  etc.,  Ry.  Co. 
V.  Moore.  SO  Ga.  522.  5  S.  E.  7P.9  (188S). 

"I  -wish,  to  add  here  a  remark,  that  when  the  words  'imposition,'  'deception,' 
'fraud'  are  used.  It  is  because  they  are  found  in  the  boolcs  treating  on  this 
matter,  and  not  as  imputing  to  the  plaintiffs  any  motive  or  design  inconsistent 
with  complete  aiercantile  honor  and  fair  dealing.  It  would  be  more  accordant 
with  the  idea  meant  to  be  conveyed  to  use  the  language  suggested  by  reputable 
writers  on  insurance,  and  to  say  that  a  concealment  without  design  is  a  fail- 
ure to  observe  an  implied  condition  that  the  contract  for  carriage  is  free  from 
misrepresentation  or  concealment.  It  is  proper  also  to  add  that  while  such 
a  concealment,  under  such  a  contract  as  there  is  in  this  case,  relieves  the  c-ar- 
rier  from  liability  for  a  loss  occurring  from  ordinary  negligence,  we  do  not 
now  hold  that  he*  will  be  thereby  thus  relieved,  where  his  acts  or  those  of  his 
servants  have  amounted  to  a  misfeasance  or  abandonment  of  his  character 
as  carrier."  Folger,  J.,  in  Magnin  v.  Dinsmore,  62  N.  Y.  35,  20  Am.  Rep.  442 
(187.0). 

With  the  principal  case,  compare  Walker  v.  Jackson,  10  Mees.  &  W.  161 
(1842),  which  holds  that  a  ferryman  liable  for  the  loss  of  a  carriage  given 
into  his  custody  is  not  relieved  from  liability  for  the  loss  of  boxes  of  jewelry 
under  its  seat  by  the  shippers  failure  to  inform  him  of  their  presence.  Com- 
pare, also,  Shaw  v.  Gt.  Western  Ry.  Co.,  [1S94]  1  Q.  B.  373,  380. 

See,  also,  Baldwin  v.  Liverix)ol.  etc.,  Co.,  74  N.  Y.  12.5.  30  Am.  Rep.  277  (1878), 
carrier  entitled  to  agreed  freight  only  on  a  box  which  witliout  its  knowledge 
contained  bonds  worth  $1.000,000 ;  Smith  v.  Findley,  34  Kan.  316,  8  Pac.  871 
(1885),  entitled  to  extra  freight  where,  under  a  contract  to  carry  household 
goods,  other  goods  were  shipped  for  which  it  had  a  higher  rate;  U.  S.  Ex.  Co. 
V.  Koerner,  65  Minn.  .540.  68  N.  W.  181,  33  L.  R.  A.  600  (1896). 

48  The  statement  of  facts  and  parts  of  the  opinion  have  been  omitted. 


100  THE  carrier's  undertaking.  (Part  2 

The  impossibility  of  traveling  without  the  accompaniment  of  a 
certain  quantity  of  luggage  for  the  personal  comfort  and  convenience 
of  the  traveler  has  led  from  the  earliest  times  to  the  practice  on  the 
part  of  carriers  of  passengers  for  hire  of  carrying,  as  a  matter  of 
course,  a  reasonable  amount  of  luggage  for  the  accommodation  of 
the  passengers,  and  of  considering  the  remuneration  for  the  car- 
riage of  such  luggage  as  comprehended  in  the  fare  paid  for  the  con- 
veyance of  the  passenger.  Under  the  older  system  of  traveling  by 
stage  coaches,  canal  boats,  or  other  vessels,  the  amount  of  luggage  to 
be  thus  carried  free  of  charge  was  commonly  made  part  of  the  con- 
tract by  express  stipulation  or  notice  from  the  carrier.  Under  the 
modern  system  of  railway  conveyance,  it  is  fixed  and  regulated  by 
the  various  acts  of  Parliament  under  which  railways  have  been  estab- 
lished. 

The  provision  fixing  the  amount  of  luggage  which  the  traveler  shall 
be  entitled  to  take  with  him  free  of  charge  has  a  twofold  object: 
First,  that  of  securing  to  the  traveler  the  conveyance  of  a  reasonable 
amount  of  luggage;  secondly,  that  of  protecting  the  carrier  from  all 
dispute  as  to  the  amount  of  luggage  which  the  passenger  may  claim 
to  have  carried,  as  well  ,as  of  entitling  the  former  to  a  proper  re- 
muneration for  the  carriage  of  luggage  in  excess  of  the  quantity  thus 
fixed  by  statute. 

Besides  thus  fixing  the  quantum  of  luggage  which  the  passenger 
shall  be  entitled  to  have  carried  free  of  charge,  the  Railway  Acts 
have,  in  conformity  with  the  practice  of  carriers  under  the  old  system, 
taken  care  expressly  to  limit  the  right  of  the  passenger  to  ordinary 
luggage,  which  must  be  taken  to  mean  the  personal  luggage  of  the 
traveler. 

The  conveyance  of  the  personal  luggage  of  the  passenger  being 
obviously  for  his  convenience,  and,  therefore,  accessory,  as  it  were, 
to  his  conveyance,  it  may  be  thought  that  the  liability  of  the  carrier 
in  respect  of  the  safe  conveyance  of  passengers'  luggage  should  have 
been  coextensive  only  with  the  liability  in  respect  of  the  safety  of  the 
passenger.  The  law,  however,  is  now  too  firmly  settled  to  admit  of 
being  shaken,  that  the  liability  of  common  carriers  in  respect  of  ar- 
ticles carried  as  passengers'  luggage  is  that  of  carriers  of  goods  as 
distinguished  from  that  of  carriers  of  passengers;  unless,  indeed, 
where  the  passenger  himself  takes  the  personal  charge  of  them,  as 
in  Talley  v.  Great  Western  Ry.  Co.,  L-  R.  6  C.  P.  44,  in  which  case 
other  considerations  arise. 

On  the  other  hand,  the  obligation  of  a  railway  company,  or  other 
carrier  of  passengers,  to  carry  the  luggage  of  a  passenger  being  limited 
lo  personal  luggage,  it  follows  that  it  is  only  in  respect  of  what  prop- 
erly falls  under  the  denomination  of  personal  luggage,  or  has  been 
accepted  by  the  carrier  as  such,  that  the  liability  to  carry  safely  ir- 
respectively  of   negligence,   attaches. 

It  is  necessary  to  state  the  proposition  with  this  qualification;  for, 


Ch,  1)  THE    CONDUCT   OF   TRANSPORTATION.  101 

as  the  limitation,  both  as  to  the  quantity  and  the  character  of  the  kig- 
gage  to  be  carried,  is  estabhshed  for  the  protection  of  the  carrier,  it 
follows  that  in  either  respect  it  may  be  waived  by  the  latter;  and, 
consequently,  that  if  the  carrier  permits  the  passenger,  either  on  pay- 
ment or  without  payment  of  an  extra  charge,  to  take  more  than  the 
regulated  quantity  of  luggage,  or  knowingly  permits  him  to  take  as 
personal  luggage  articles  that  would  not  come  under  that  denomina- 
tion, he  will  be  liable  for  their  loss  though  not  arising  from  his  neg- 
ligence.    [The  learned  judge  here  reviewed  certain  cases.]     =1^      *     * 

While  the  authorities  referred  to  establish  that  a  passenger  cannot 
claim  to  have  carried  as  ordinary  personal  luggage  articles  unconnected 
with  the  personal  use  and  convenience  of  the  traveler,  or,  as  in  Hud- 
ston  v.  Midland  Ry.  Co.,  L.  R.  4  Q.  B.  366,  of  such  a  size  and  shape 
as  that  they  cannot  reasonably  be  carried  as  luggage,  we  hold  the 
true  rule  to  be  that  whatever  the  passenger  takes  with  him  for  his 
personal  use  or  convenience  according  to  the  habits  or  wants  of  the 
particular  class  to  which  he  belongs,  either  with  reference  to  the  im- 
mediate necessities,  or  to  the  ultimate  purpose,  of  the  journey,  must 
be  considered  as  personal  luggage.  This  would  include,  not  only  all 
articles  of  apparel,  whether  for  use  or  ornament — leaving  the  carrier 
herein  to  the  protection  of  the  Carriers  Act,  to  which,  being  held  to 
be  liable  in  respect  of  passengers'  luggage  as  a  carrier  of  goods,  he 
undoubtedly  becomes  entitled— but  also  the  gun  case  or  the  fishing 
apparatus  of  the  sportsman,  the  easel  of  the  artist  on  a  sketching  tour, 
or  the  books  of  the  student,  and  other  articles  of  an  analogous  char- 
acter, the  use  of  which  is  personal  to  the  traveler,  and  the  taking  of 
which  has  arisen  from  the  fact  of  his  journeying. 

On  the  other  hand,  the  term  "ordinary  luggage"  being  thus  con- 
fined to  that  which  is  personal  to  the  passenger  and  carried  for  his 
use  or  convenience,  it  follows  that  what  is  carried  for  the  purposes 
of  business,  such  as  merchandise  or  the  like,  or  for  larger  or  ulterior 
purposes,  such  as  articles  of  furniture  or  household  goods,  would 
not  come  within  the  description  of  ordinary  luggage  unless  accepted 
as  such  by  the  carrier. 

The  articles  as  to  which  the  question  in  the  present  case  arises  con- 
sisted of  bedding.  Now,  though  we  are  far  from  saying  that  a  pair 
of  sheets,  or  the  like,  taken  by  a  passenger  for  his  own  use  on  a  jour- 
ney, might  not  fairly  be  considered  as  personal  luggage,  it  appears 
to  us  that  a  quantity  of  articles  of  this  description,  intended,  not  for 
the  use  of  the  traveler  on  the  journey,  but  for  the  use  of  his  house- 
hold when  permanently  settled,  cannot  be  held  to  be  so. 

We  are,  therefore,  of  opinion  that  the  rule  to  reduce  the  damages 
in  respect' of  these  articles  must  be  made  absolute. 

Rule  absolute.*^ 

49  In  Britten  v.  Great  Northern  Railway  Co..  [1899]  1  Q.  B.  243.  Channell. 
T  said-  "It  seems  to  me  tliat,  overriding  it  all,  in  the  word  'luggage'  there 
is'  involved  the  idea  of  a  package  or  something  of  that  sort ;   and  it  seems  to 


102  THE    carrier's   UNDERTAKING.  (Part  2 

DUNLAP  V.  INTERNATIONAL  STEAMBOAT  CO. 
(Supreme  Judicial  Court  of  Massachusetts,  1807.    98  Muss.  371.) 

Actions  of  tort  against  a  common  carrier  for  loss  of  a  valise  taken 
as  baggage,  and  containing,  among  other  articles,  money  belonging  to 
each  of  the  plaintiffs. 

The  judge  instructed  the  jury,  substantially  in  accordance  with  the 
defendant's  request,  that  for  money  in  the  valise  in  excess  of  a  reason- 


me  that  an  article  which  is  taken,  as  it  were,  loose,  as  a  bicycle  is  talcen,  is 
subject  to  rather  different  considerations.  I  think  that  Mr.  Russell  is  right 
in  saying  that  there  must  be  added  to  the  things  which  are  not  luggage  things 
of  a  si>ecial  character,  which  require  special  care,  and  are  not  packed  in  this 
way.  There  are  many  small  articles,  such  as  musical  instruments,  for  in- 
stance, or  a  gun  apart  from  its  case,  which  are  sometimes  carried  by  pas- 
sengers. I  do  not  think  that  a  passenger  could  require  articles  of  that  kind  to 
be  taken  as  luggage,  loose  and  without  package,  though  it  may  be  that  a  gun  in 
a  gun  ease  packed  up  would  be  a  ixickage  and  ordinary  luggage.  *  *  *  When 
it  is  tendered  to  the  company  unpacked,  it  seems  to  me  they  are  entitled  to  say, 
'This  sort  of  thing  is  not  what  we  are  called  upon  to  carry  as  personal  lug- 
gage;' and  that  is,  I  think,  the  result  of. the  case  of  Macrow  v.  Great  West- 
ern Railway,  L.  R.  6  Q.  B.  612.  I  think  that  is  sufficient  to  justify  me  in  hold- 
ing that  a  bicycle  is  not  personal  luggage." 

Ace.  Missouri  v.  Missouri  Pac.  Ry.  Co.,  71  Mo.  App.  385  (1897). 

In  Runyon  v.  Central  R.  Co.  of  N.  J.,  61  N.  J.  Law,  537,  41  Atl.  367,  43  L. 
R.  A.  284,  68  Am.  St.  Rep.  711  (1S9S).  it  was  held  that  a  railroad  may  refuse 
to  permit  a  passenger  returning  to  his  home  in  the  suburbs  to  bring  into  its  pas- 
senger car  a  parcel  bought  in  the  city  and  carried  in  his  hand,  which  he  would 
not  be  entitled  to  have  carried  as  baggage,  and  that  a  10-pound  package  of 
nails  was  such  a  parcel.  But  it  was  also  held  that  if  it  has  been  usual  to 
permit  passengers  to  carry  such  parcels,  so  that  they  have  formed  a  practice 
of  doing  so,  the  permission  can  only  be  withdrawn  after  reasonable  notice. 

It  has  been  held:  That  a  pair  of  dueling  pistols  on  an  Illinois  river  steam- 
boat in  1851  were  proper  baggage.  Woods  v.  Devin,  13  111.  746,  56  Am.  Dec. 
483  (18.52).  Otherwise  as  to  two  revolvers.  Chicago,  R.  I.  &  P.  R.  Co.  v.  Col- 
lins, 56  111.  212  (1870).  And  as  to  a  single  pistol.  Cooney  v.  Pullman  Co.,  121 
Ala.  368,  25  South.  712,  53  L.  R.  A.  690  (1899).  That  material  bought  in  New 
York  for  a  dress  for  a  passenger's  wife  was  baggage ;  otherwise,  as  to  mate- 
rial for  a  dress  for  his  landlady.  Dexter  v.  Syracuse  R.  Co.,  42  N.  Y.  326,  1 
Am.  Rep.  527  (1870).  That  the  manuscript  books  of  a  student  on  his  way  to 
college  were  baggage.  Hopkins  v.  Westcott,  6  Blatchf.  64,  Fed.  Cas.  No. 
6,692  (1868).  But  tliat  a  client's  title  deeds,  taken  by  his  attorney  to  pro- 
duce in  evidence  on  a  trial,  were  not  "ordinary  luggage,"  under  a  statute  de- 
fining the  passenger's  rights.  Phelps  v.  London  &  N.  W.  Ry.  Co.,  19  C.  B  (N. 
S.)  321  (1865).  That  tools  of  a  mechanic  are  baggage,  but  only  when  reasonable 
in  quantity  and  of  a  kind  usually  carried  for  personal  use.  Kansas  City,  etc., 
R.  Co.  V.  Morrison,  34  Kan.  502,  9  Pac.  225,  55  Am.  Rep.  252  (1886):  Missouri, 
etc.,  Co.  v.  Meek,  33  Tex.  Civ.  App.  47,  75  S.  W.  317  (1903).  That  a  traveling 
salesman's  catalogue  was  baggage.  Staub  v.  Kendrick,  121  Ind.  226,  23  N.  E. 
79.  6  L.  R.  A.  619  (1889) ;  Gleason  v.  Transportation  Co.,  32  Wis.  85,  14  Am. 
Rep.  716  (1873).  But  that  samples  used  by  him  in  making  sales  were  not.  111. 
Central  R.  Co.  v.  Matthews,  114  Ky.  973,  72  S.  W.  302,  60  L.  R.  A.  846,  102 
Am.  St.  Rep.  316  (1903) ;  Kansas  Citv,  P.  &  G.  R.  Co.  v.  State,  65  Ark.  363,  46 
S.  W.  421,  41  L.  R.  A.  333.  67  Am.  St.  Rep.  933  (1898).  For  other  cases,  see 
Carriers,  9  Cent.  Dig.  §§  1520-1528,  4  Dec.  Dig.  §  391. 

For  the  liability  of  an  express  company  carrying  from  a  railroad  station 
to  the  owner's  residence  a  trunk  containing  articles  not  baggage,  see  Parmelee 
V.  Lowitz,  74  111.  116,  24  Am.  Rep.  276  (1874). 


Ch.  1)  THE    CONDUCT   OF   TRANSPORTATION.  103 

able  amount  for  traveling-  expenses  the  defendant  would  be  liable 
if  the  valise  were  lost  by  its  gross  negligence  or  fraudulently  ap- 
propriated by  any  person  in  its  regi?lar  employment  while  on  duty 
in  or  about  the  baggage.  The  jury  gave  verdicts  for  the  full  value  of 
the  property  lost.  The  judge  reported  the  case  for  revision,  the  ver- 
dicts to  be  set  aside,  affirmed,  or  amended  as  law  or  justice  might 
require. 

BiGELOW,  C.  J.^"  *  *  *  On  careful  consideration  of  the  instruc- 
tions embraced  in  the  defendants'  prayer  and  those  given  by  the  court 
to  the  jury,  we  are  led  to  the  conclusion  that  neither  of  them  con- 
tained a  correct  statement  of  the  rules  of  law  applicable  to  the  facts 
in  proof.  It  was  shown  at  the  trial,  and  on  this  part  of  the  case  there 
was  no  controversy  between  the  parties,  that  there  was  but  a  single 
article  of  luggage  delivered  to  the  defendants;  that  this  was  a  valise 
such  as  is  commonly  used  by  travelers  for  the  transportation  of  wear- 
ing apparel  and  other  personal  effects;  that  the  whole  of  the  contents, 
except  a  portion  of  the  money  contained  in  it,  belonged  to  one  of  the 
plaintiffs,  by  whom  it  was  delivered  to  the  defendants'  agent ;  and 
that  the  other  plaintifif  had  no  valise  or  trunk,  and  no  wearing  ap- 
parel or  other  articles  of  personal  use  in  his  possession  or  keeping, 
except  such  as  were  on  his  person  when  he  went  on  board.  In  this 
state  of  the  evidence,  the  question  arises  as  to  the  extent  of  the  de- 
fendants' liability  for  the  loss  of  the  valise.  It  is  conceded  that  they 
are  responsible  in  damages  to  the  plaintiff  who  owned  the  valise,  for 
the  value  of  the  wearing  apparel  and  the  other  articles  of  personal 
use  contained  in  it,  and  also  for  such  an  amount  of  money  therein  as 
was  sufficient  to  defray  his  traveling  expenses  on  the  journey  which 
he  had  undertaken.  The  controversy  is  as  to  their  further  liability 
for  the  residue  of  the  money  contained  in  the  valise.    *     *     * 

In  regard  to  carriers  of  passengers,  there  can  be  no  doubt  that  per- 
sons who  enter  into  contracts  with  them  to  transport  themselves  and 
their  luggage,  nothing  being  said  as  to  the  contents  of  the  parcels 
which  are  delivered  for  carriage,  and  these  being  in  the  form  of  trunks 
or  valises  such  as  are  commonly  used  for  clothing  and  other  personal 
effects,  represent  by  implication  to  the  carriers  that  they  contain  no 
articles  or  property  not  properly  included  within  this  class  or  de- 
scription, and  such  as  a  traveler  may  carry  with  him  as  part  of  his 
luggage,  and  for  which  he  can  hold  the  carrier  responsible  under  his 
contract.  If  other  and  different  articles  of  greater  value  are  contained 
in  such  trunks  or  valises,  it  is  a  disguise  of  their  true  nature  and 
value,  and  operates  as  an  unfair  and  fraudulent  concealment  of  them 
which  absolves  the  carriers  from  liability  therefor  in  case  of  loss. 
Nor  is  this  all.  In  such  a  case,  the  owner  can  prove  no  contract  for 
the  transportation  of  any  articles  other  than  wearing  apparel  and  other 

6  0  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion 
omitted. 


lO-l  THE    carrier's   UNDERTAKING.  (Part  2 

ordinary  personal  effects  and  an  amount  of  money  reasonably  suf- 
ficient for  the  payment  of  traveling  expenses. 

What  is  the  contract  into  which  the  carrier  enters  when  he  receives 
a  passenger?  It  is  only  to  transport  him  safely,  together  with  such 
articles  and  money  as  are  properly  contained  in  the  luggage  which  he 
brings  with  him ;  but  he  does  not  contract  to  transport  anything  which 
he  may  bring  with  him  in  the  shape  of  luggage,  when  in  fact  it  is  not 
properly  such,  but  merchandise  or  money  which  he  cannot  ask  the  car- 
rier to  receive  in  that  form.  Therefore  it  is  that  he  cannot  be  held 
liable  at  all,  not  even  for  gross  negligence,  for  the  loss  of  any  articles 
not  embraced  within  the  contract.  He  did  not  agree  to  receive  or 
transport  money  beyond  a  certain  amount,  or  merchandise  of  any 
kind ;  and  he  cannot  be  held  liable  for  any,  even  the  smallest  degree 
of  care  of  that  which  he  did  not  agree  to  take  into  his  possession 
and  keeping. ^^  *  *  *  These  principles  are  decisive  of  the  rights 
of  the  parties  to  these  actions. 

The  only  contracts  into  which  the  defendants  are  shown  to  have  en- 
tered with  the  plaintiffs  are  for  the  carriage  of  one  of  them  with  his 
luggage,  and  of  the  other  without  any  luggage.  To  the  former  they 
are  liable  only  for  the  sum  found  by  the  jury  to  be  the  value  of  his 
wearing  apparel  and  personal  effects,  and  for  the  sum  of  money  con- 
tained in  his  valise  necessary  to  defray  his  traveling  expenses.  To 
the  other  plaintiff  they  are  not  liable  at  all,  because  he  is  not  shown 
to  have  made  any  contract  with  them  to  transport  luggage.  The 
money  belonging  to  him  in  the  valise  of  the  first  plaintiff  cannot  be 
recovered.  Of  its  existence  the  defendants  had  no  knowledge.  It 
was  concealed  from  them  by  being  put  into  luggage  which  was  de- 
livered to  and  received  by  them  as  belonging  to  one  passenger  only. 
It  was  as  such  that  they  agreed  to  carry  it.  It  was  in  effect  a  con- 
cealment of  its  real  value  to  put  into  it  a  larger  amount  of  money  than 
was  sufficient  for  the  expenses  of  a  single  passenger.  This  enhanced 
the  risk  assumed  by  the  defendants,  without  their  knowledge.  It 
exposed  them  to  the  hazard  of  incurring,  by  the  loss  of  the  luggage 

51  Ace.  Great  Northern  Ry.  Co.  v.  Shepherd.  8  Ex.  30  (1852);  Michigran 
Central  R.  Co.  v.  Carrow,  7.3  111.  348,  24  Am.  Rep.  248  (1874);  Toledo,  etc., 
R.  Co.  V.  Bowler,  etc..  Co.,  03  Ohio  St.  274.  .58  N.  E.  813  (1900) ;  Missouri,  K. 
&  T.  R.  Co.  V.  Meek,  33  Tex.  Civ.  App.  47,  75  S.  W.  317  (1003).  carrier  holding 
as  warehouseman;  Choctaw,  O.  &  G.  R.  Co.  v.  Zwirtz,  13  Okl.  411,  73  Pac. 
941  (1908).  delay  in  delivery;  Yazoo  &  M.  V.  R.  Co.  v.  Georgia,  etc.,  Co.,  85 
Miss.  7,  37  South.  50O,  67  L.  R.  A.  646.  107  Am.  St.  Rep.  265  (1904).  delay  in 
delivery ;  Mexican  Cent.  Ry.  Co.  v.  De  Rosear  (Tex.  Civ.  App.)  109  S.  W.  949 
(190S).     But  see  Trouser  Co.  v.  Railroad,  139  N.  C.  382,  51  S.  E.  973  (190.5). 

In  Great  Northern  Ry.  Co.  v.  Shepherd,  supra,  Parke.  B.,  said:  "Whether 
this  was  done  for  any  fraudulent  purpose,  it  is  not  necessary  to  inquire;  be- 
cause, even  if  there  was  no  fraudulent  intent,  the  plaintiff  lias  so  conducted 
himself  that  the  company  were  not  aware  that  he  was  not  carrying  luggage, 
and  therefoi-e  the  loss  must  be  borne  bv  him." 

Ace.  Pardee  v.  Drew,  25  Wend.  (N.'y.)  459  (1841);  Mich.  Cent.  R.  Co.  v. 
Carrow,  supra.  Compare  Wilkinson  v.  Lancashire,  etc.,  Ry.,  [1907]  2  K.  B. 
222. 


Ch,    1)  THE   CONDUCT   OF   TRANSPORTATION.  .  10& 

of  one  passenger,  a  heavier  liability  than   they  had  ever  agreed   to 
assume. 

It  is  obvious  that  this  was  a  practical  fraud  on  the  defendants.  Nor 
can  we  see  any  limit  to  the  amount  of  liability  which  might  be  thus 
imposed  on  carriers  of  passengers,  without  notice  to  them,  if  they 
can  be  held  to  be  chargeable  in  this  action  beyond  the  amount  of 
money  which  one  person  might  properly  carry.  If  a  single  passenger 
could  carry  at  their  risk  the  money  of  another  fellow  passenger  in  his 
own  valise  or  trunk,  he  might  in  like  manner  render  them  liable,  in 
case  of  the  loss  of  his  luggage,  for  the  money  of  any  number  of  pas- 
sengers, however  large. 


ALLING  V.  BOSTON  &  A.  R.  CO. 

(Supreme  Judicial  Court  of  :Miissachnsetts,  1879.    126  Mass.  121,  30  Am.  Rep. 

667.) 

Morton,  J.^^  *  *  *  The  plaintiffs  offered  to  show  "that  a 
large  part  of  the  defendant's  business  consisted  in  transporting  a  large 
class  of  passengers  known  as  commercial  travelers,  with  trunks  like 
this,  containing  merchandise  of  great  value,  and  that  these  trunks  are 
known  as  sample  or  merchandise  trunks,  and  are  of  special  construc- 
tion, and  in  the  course  of  that  business  the  commercial  travelers  pur- 
chase tickets  for  the  ordinary  passenger  trains  and  receive  checks  for 
their  said  trunks,  and  the  defendant  undertakes  to  transport  the  trav- 
eler and  trunk  accordingly  for  the  price  of  the  ticket." 

The  court  properly  rejected  this  evidence.  The  same  evidence  in 
substance  was  offered  and  rejected  in  Stimson  v.  Connecticut  River 
Railroad,  98  Mass.  83,  93  Am.  Dec.  140. 

It  would  undoubtedly  be  competent  for  a  railroad  corporation  to 
agree  to  transport,  at  its  risk,  merchandise  by  a  passenger  train  for 
the  price  of  the  ticket  sold  to  the  passenger.  And  if  the  defendant 
had  made  such  an  agreement  specially  with  Kerr,  or  if  it  had  by  no- 
tice or  otherwise  made  a  general  agreement  that  commercial  travelers 
might  carry  merchandise  upon  passenger  trains  at  its  risk,  it  might 
be  liable  in  this  action.  But  the  offer  of  proof  does  not  go  far  enough 
to  show  such  an  agreement. 

The  fact  that  commercial  travelers  or  others  are  accustomed  to 
carry  merchandise  in  passenger  trains  without  paying  any  more  than 
the  usual  price  of  a  ticket  for  a  passenger,  even  if  known  to  the  car- 
riers, will  not  render  them  liable  for  such  merchandise.  The  travelers 
carry  such  merchandise  at  their  own  risk.  The  established  rule  of 
law  which  limits  the  responsibility  of  the  carrier,  upon  the  contract 
implied  by  the  sale  of  a  ticket  to  a  passenger  to  the  proper  personal 
baggage  of  such  passenger,  cannot  be  annulled,  and  the  liability  of  the 

62  The  statement  of  facts  and  part  of  tlae  opinion  have  been  omitted. 


106  THE   carrier's   UNDERTAKING.  (Part  2 

carrier  enlarged,  without  proof  of  an  ag-reement  to  that  effect  entered 
into  by  the  carrier. 

For  these  reasons,  we  are  of  opinion  that,  upon  the  evidence  in  this 
case,  the  jury  would  not  be  justified  in  finding  the  defendant  liable 
either  in  contract  or  tort. 

Plaintiffs  nonsuit.^^ 


ST.  JOSEPH  &  W.  R.  CO.  v.  WHEELER. 

(Supreme  Court  of  Kansas,  1886.    35  Kau.  185,  10  Pac.  461.) 

Action  by  an  administrator  against  a  railroad  company  to  recover 
damages  for  negligently  causing  the  death  of  his  intestate,  a  boy 
named  Frank  Wheeler.  It  appeared  at  the  trial  that,  while  defend- 
ant's construction  train  with  caboose  attached  was  being  loaded  with 
earth  to  be  earned  to  another  point  on  the  line  for  the  repair  of  the 
roadbed  there,  Wheeler  came  up  and,  learning  where  the  train  was 
going,  asked  permission  to  ride.  The  conductor  consented,  and 
Wheeler  rode  with  trainmen  in  the  caboose.  He  was  killed  in  a  colli- 
sion with  a  freight  train  caused  by  defendant's  negligence.  Plaintiff 
had  a  verdict. 

Johnston,  J.^*  (after  stating  the  facts).  *  *  *  One  of  the 
questions  raised  is  that  there  was  no  correspondence  between  the 
pleadings  and  the  evidence.  The  point  is  made  that  the  plaintiff  al- 
leged that  Frank  Wheeler  was  a  passenger — a  term  which  it  is  claimed 
implied  that  Frank  Wheeler  was  traveling  in  a  public  conveyance  by 
virtue  of  a  contract,  express  or  implied,  with  the  carrier,  as  the  pay- 

53  Ace.  McKibbin  v.  Great  No.  Ry.  Co.,  7S  Minn.  232,  80  N.  W.  1052  (1899) ; 
Illinois  Cent.  R.  Co.  v.  Mattbews.  114  Ky.  973,  72  S.  W.  302,  60  L.  R.  A.  84(3. 
102  Am.  St.  Rep.  316  (1903).  Compare  ^icKibbin  v.  Wis.  Cent.  Ry.,  100  Minn. 
270,  110  N.  W.  904,  8  L.  R,  A.  (N.  S.)  489.  117  Am.  St.  Rep.  689  (1907). 

In  tbe  following  cases  wbere  a  baggagemaster,  tbough  against  instructions, 
received,  for  transportation  as  baggage,  trunks  which  he  knew  to  contain  mer- 
chandise, tbe  carrier  was  held  liable  as  for  baggage:  Central  Trust  Co.  v. 
Wabash  R.  Co.  (C.  C.)  39  Fed.  417  (1889) ;  St.  Louis  S.  W.  R.  Co.  v.  Berry.  60 
Ark.  433,  30  S.  W.  764,  28  L.  R.  A.  .501,  46  Am.  St.  Rep.  212  (1895).  And  see 
Hannibal  R.  R.  v.  Swift,  12  Wall.  202,  20  L.  Ed.  423  (1870) ;  Talcott  v.  Wabash 
R.  R.  Co.,  159  N.  Y.  461.  471.  54  N.  B.  1  (1899).  It  has  been  held  otherwise 
if  the  passenger  knew  of  the  instructions.  Weber  Co.  v.  Chicago,  etc.,  Co..  113 
Iowa.  188,  84  N.  W.  1042  (1901).  And  even  if  he  did  not  know.  Blumantle 
V.  Fitchburg  R.  Co.,  127  Mass.  322,  34  Am.  Rep.  376  (1879). 

In  Cahill  v.  London  &  N.  W.  Ry.  Co.,  13  C.  B.  (N.  S.)  818  (1863)  Cockbum, 
C.  J.,  said:  "The  question,  therefore,  comes  to  this:  Was  there  knowledge  on 
the  part  of  the  company  that  the  box  which  the  plaintiff  was  carrying  with 
him  as  personal  luggage  in  fact  contained  merchandise?  *  *  ♦  It  is  true 
that  the  package  bore  the  semblance  of  a  package  of  merchandise,  and  it  was 
marked  'Glass.'  But  many  packages  which  do  not  contain  merchandise  are  so 
marked  in  order  to  secure  their  being  handled  with  more  than  ordinary  cau- 
tion. It  is  not  found  ig  the  case  that  the  company  or  their  servants  had  any 
knowledge  on  the  subject ;  nor  do  I  think  we  can  assiune  it  is  a  legitimate  con- 
clusion from  the  facts  as  stated." 

5*  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion 
omitted. 


Ch.  1)  THE   CONDUCT   OF   TRANSPORTATION.  107 

ment  of  fare,  or  that  which  is  accepted  as  an  equivalent  therefor,  while 
the  evidence  offered  showed  that  he  was  carried  on  a  train  not  designed 
for  passengers,  that  no  fare  was  collected  or  expected  to  be  paid,  and 
therefore  that  he  did  not  stand  toward  the  company  in  the  relation  of 
a  passenger.  This  is  one  sense  in  which  the  term  is  used,  but  not  the 
only  one.  It  is  commonly  applied  to  any  one  who  travels  in  a  convey- 
ance, or  who  is  carried  upon  a  journey,  irrespective  of  the  character  of 
the  conveyance  or  of  compensation  to  the  carrier. 

While  the  plaintiff  alleged  that  Wheeler  was  carried  as  a  passenger, 
he  nowhere  averred  that  he  was  carried  for  hire,  nor  can  it  be  said  that 
the  petition  was  framed  upon  the  theory  that  there  was  a  contract 
relation  between  deceased  and  the  company.  It  was  rather  upon  the 
theory  that  he  was  not  a  trespasser  upon  the  defendant's  train,  and 
it  is  specially  alleged  that  he  was  upon  the  train  with  the  knowledge 
and  consent  of  the  conductor.  From  this  averment  it  is  manifest  that 
the  pleader  did  not  rely  upon  any  agreement  between  the  company  and 
Wheeler,  and  did  not  intend  to  hold  the  company  to  extraordinary 
care,  as  it  would  be  held  in  carrying  persons  who  were  passengers  in 
a  strictly  legal  sense ;  but  rather,  that  as  Wheeler  was  upon  the  train 
with  the  consent  of  the  conductor,  he  was  not  wrongfully  there,  and 
the  company  owed  him  the  duty  of  ordinary  care. 

The  action  was  founded  upon  the  neglect  of  the  company  and  not 
upon  the  breach  of  a  contract ;  and  allegations  of  the  relation  which 
he  occupied  toward  the  company  are  only  material  for  the  purpose  of 
determining  and  fixing  the  grade  of  care  owing  to  him  by  the  com- 
pany. As  we  interpret  the  petition,  it  did  not  allege  that  the  relation 
of  carrier  and  passenger  existed  by  reason  of  an  agreement  between 
the  deceased  and  the  company,  and  therefore  that  there  was  no  sub- 
stantial variance  between  the  pleadings  and  the  evidence. 

A  series  of  instructions  were  prepared  by  the  railroad  company  and 
disallowed  by  the  court,  and  their  refusal  is  assigned  as  error.  Most 
of  them  in  effect  instructed  a  verdict  in  favor  of  the  defendant,  and 
asserted  that  the  company  cannot  be  held  liable  for  injury  to  one  who 
rides  upon  a  construction  train  with  the  consent  of  the  conductor,  and 
who  is  not  a  passenger  in  the  ordinary  sense.  They  were  properly  re- 
fused. We  concur  with  the  view  of  the  law  taken  by  the  trial  judge 
where  he  states  that : 

"Under  the  admitted  facts  and  the  evidence  in  the  case,  the  said 
Frank  Wheeler  was  not  a  trespasser  upon  the  defendant's  train,  al- 
though he  was  not  in  legal  contemplation  a  passenger.  A  common 
carrier  of  passengers  is  bound  to  exercise  extraordinary  care  towards 
its  passengers,  and  is  liable  for  slight  negligence,  but  it  does  not  owe 
the  same  degree  of  care  to  a  person  on  one  of  its  vehicles  or  trains, 
who  does  not  stand  in  the  relation  of  a  passenger.  To  such  persons  a 
carrier  owes  only  the  duty  of  ordinary  care,  which  is  that  degree  of 
care  which  persons  of  ordinary  prudence  would  usually  exercise  un- 
der like  circumstances." 


108  THE   carrier's   UNDERTAKING.  (Part  2 

It  is  contended  that  Frank  Wheeler  was  an  intruder  upon  the  train, 
for  whose  injury  no  habiHty  could  arise  against  the  company,  for  two 
reasons:  First,  that  the  conductor  had  instructions  not  to  carry  pas- 
sengers on  the  construction  train;  and  second,  that  from  the  nature 
of  the  business  which  was  being  done  with  the  train,  and  also  its 
equipment,  it  was  apparent  that  the  company  did  not  permit  passen- 
gers to  be  carried  thereon.  Neither  of  these  circumstances  will  de- 
feat a  recovery  in  this  case.  It  is  true  the  conductor  had  been  in- 
structed not  to  allow  persons  to  ride  upon  his  train  as  passengers,  but 
Frank  Wheeler  had  no  knowledge  of  such  instruction.  He  had  asked 
and  obtained  permission  to  ride  upon  the  train.  It  was  within  the 
range  of  the  employment  of  the  conductor  to  grant  such  permission. 
He  had  entire  charge  of  the  train,  and  was  the  general  agent  of  the 
company  in  the  operation  of  the  train.  As  he  was  the  representative 
of  the  company,  his  act,  and  the  permission  given  by  him,  may  proper- 
ly be  regarded  as  the  act  of  the  company.  If  Wheeler  had  fur- 
tively entered  upon  the  train,  or  had  ridden  after  being  informed  that 
the  rules  of  the  company  forbade  it,  or  had  obtained  permission  only 
from  the  engineer,  brakeman,  or  some  other  subordinate  employee,  the 
argument  made  by  counsel  might  apply.     *     *     h- 

As  the  charge  given  fairly  presented  the  law  of  the  case  to  the  jury, 
the  errors  assigned  will  be  overruled,  and  the  judgment  will  be  af- 
firmed. 


TOLEDO,  W.  &  W.  RY.  CO.  v.  BROOKS. 
(Supreme  Court  of  Uliuois,  1876.    81  111.  24o.) 

Writ  of  error  to  the  circuit  court  of  Champaign  county. 

This  was  an  action  on  the  case,  by  Julia  A.  Brooks,  administra- 
trix of  the  estate  of  William  H,  Brooks,  deceased,  against  the  Toledo, 
Wabash  &  Western  Railway  Company,  to  recover  damages  for  caus- 
ing the  death  of  plaintiff's  husband  and  intestate,  through  negligence. 
A  trial  was  had,  resulting  in  a  verdict  and  judgment  in  favor  of  plain- 
tiff, for  $3166. 

Walker,  J.^^  *  *  *  It  is  urged  that  the  court  erred  in  refus- 
ing to  give  the  ninth  or  some  one  of  the  other  instructions  asked  by 
plaintiff  in  error,  but  refused  by  the  court.  That  instruction  asserts 
that  if  deceased  knew  that  the  regulations  of  the  company  prohibited 
persons  from  traveling  on  the  road  without  a  ticket  or  the  paying  of 
fare,  and  if,  after  being  so  informed,  he  went  on  the  train,  and  by 
arrangement  with  the  conductor,  was  traveling  without  a  ticket  or  pay- 
ing his  fare,  deceased,  in  such  case,  would  not  be  a  passenger,  and  the 
company  would  not  be  liable  for  the  negligence  of  their  officers.  In 
some  form,  all  these  refused  instructions  present  this  question. 

6  5  Part  of  the  opinion  is  omitted. 


Ch.  1)  THE    CONDUCT   OF   TRANSPORTATION.  109 

Defendant  in  error  insists  that  this  case  is  governed  by  that  of  Ohio 
&  Mississippi  Railroad  Co.  v.  MuhUiig,  30  111.  9,  81  Am.  Dec.  336. 
In  that  case  the  passenger  had  been  in  the  employment  of  the  road, 
and  was  neither  prohibited  from  getting  on  the  train,  nor  informed 
that  it  was  against  the  rules  for  him  to  do  so  without  a  ticket  or  the 
payment  of  fare.  Again,  the  company,  in  that  case,  seems  to  have 
owed  the  plaintiff  for  labor,  which  would  have  enabled  them  to  deduct 
the  amount  of  fare  from  the  amount  owing  him.  It  was  there  said, 
that  if  a  person  was  lawfully  on  the  train,  and  injuries  ensued  from 
the  negligence  of  the  employes  of  the  company,  the  passenger  thus  in- 
jured might  recover. 

On  the  part  of  plaintiff  in  error  it  is  urged  that  railroad  companies, 
being  liable  for  the  want  of  care  of  their  officers  by  which  passengers 
suft'er  injury,  must  have  the  power  to  make  all  reasonable  regulations 
for  the  government  of  their  employes,  and  the  power  to  enforce  them ; 
that  it  is  a  reasonable  regulation  which  prohibits  persons  from  travel- 
ing upon  their  roads  without  purchasing  a  ticket  or  paying  fare ;  that  a 
person  going  on  their  road  in  known  violation  of  such  a  rule,  and  by 
inducing  the  conductor  to  violate  it,  is  not  lawfully  on  the  road,  and 
the  company  should  not  be  held  responsible  for  an  injury  received  by 
such  person ;  that  where  a  person  actively  participates  in  the  violation 
of  such  a  rule  intentionally  and  knowingly,  he  does  not  occupy  the 
same  relation  to  the  road  as  had  he  not  known  of  the  rule  or  not  done 
any  act  to  induce  its  violation. 

It  is  manifest  that  if  a  person  were  stealthily,  and  wholly  without 
the  knowledge  of  any  of  the  employes  of  the  company,  to  get  upon  a 
train  and  secrete  himself,  for  the  purpose  of  passing  from  one  place  to 
another,  he  could  not  recover  if  injured.  In  such  a  case  his  wrongful 
act  would  bar  him  from  all  right  to  compensation.  Then,  does  the 
act  of  the  person  who  knowingly  induces  the  conductor  to  violate  a 
rule  of  the  company,  and  prevails  upon  him  to  disregard  his  obliga- 
tions to  fidelity  to  his  employer,  to  accomplish  the  same  purpose,  oc- 
cupy a  different  position,  or  is  he  entitled  to  any  more  rights?  He 
thereby  combines  with  the  conductor  to  wrong  and  defraud  his  em- 
ployer out  of  the  amount  of  his  fare,  and  for  his  own  profit.  In  this 
case  the  evidence  tends  strongly  to  show  that  both  defendant  in  er- 
ror and  her  husband  had  money  more  than  sufficient  to  pay  their  fare 
to  Danville,  and  a  considerable  distance  beyond  that  place.  If  this  be 
true,  and  defendant  in  error  swears  they  had,  then  they  were  engaged 
in  a  deliberate  fraud  on  the  company,  no  less  than  by  false  representa- 
tions to  obtain  their  passage  free  from  Decatur  to  Danville,  and  thus 
defraud  the  company  out  of  the  sum  required  to  pay  their  fare.  In 
this  there  is  a  broad  distinction  from  Muhling's  Case,  as  in  that  case 
there  was  no  pretense  of  fraud  or  wrong  on  his  part.  The  court  be- 
low should  have  given  some  one  of  the  defendant's  instructions  which 
announced  the  view  here  expressed. 

The  evidence  is  not  of  the  character  to  convince  us  that  the  judg- 


110  THE    carrier's   UNDERTAKING.  (Pirt  2 

ment  should  stand,  notwithstanding  the  erroneous  instructions  given 
or  the  refusal  to  give  proper  instructions.  We  have  no  doubt  that 
the  erroneous  instructions  given  misled  the  jury  in  finding  their  ver- 
dict. 

For  the  errors  indicated,  the  judgment  of  the  court  below  must  be 
reversed  and  the  cause  remanded. 


CONDRAN  v.  CHICAGO,  M.  &  ST.  P.  RY.  CO. 

(Circuit  Court  of  Appeals,  Eighth  Circuit,  189.5.    67  Fed.  522,  14  C.  C.  A.  506, 

28  L.  R.  A.  749.) 

Plaintiff  brings  error. 

Caldwell,  C.  J.^®  The  case  is  stated  by  Judge  Shiras,  who  tried 
it  in  the  Circuit  Court,  in  his  charge  to  the  jury,  as  follows: 

"In  the  case  now  on  trial  before  you  it  appears  from  the  undis- 
puted evidence  in  the  case  that  on  the  evening  of  June  16,  1891,  a  pas- 
senger train  on  the  defendant's  line  of  railway  was  derailed  at  or  near 
a  bridge  crossing  the  Coon  river,  not  far  from  the  town  of  Coon 
Rapids,  in  this  state  ;  that  Henry  Condran  was  on  the  train  when  it  was 
derailed,  and  was  instantly  killed;  that  the  plaintiff  is  the  administra- 
trix of  his  estate,  and  that  she  brings  this  suit  to  recover  the  damages 
caused  to  the  estate  of  Henry  Condran  by  his  death,  claiming  that  the 
said  Henry  Condran  was  a  passenger  on  defendant's  train,  and  that 
the  derailment  of  the  train,  and  consequent  death  of  said  Henry  Con- 
dran, was  caused  by  the  negligence  of  the  railway  company.  *  *  * 
If  the  deceased  in  fact  had  money  with  him,  with  which  he  could  have 
paid  his  fare,  but  instead  of  paying  the  same,  he  intentionally  mis- 
stated his  situation  to  the  conductor,  and  by  false  representation  in- 
duced the  latter  to  allow  him  to  remain  on  the  train,  then  it  could  not 
be  said  that  he  was  rightfully  upon  the  train,  but  he  would  be  there  in 
fraud  of  the  rights  of  the  company,  and  the  legal  relation  of  carrier 
and  passenger  would  not  in  such  case  exist  between  him  and  the  com- 
pany. The  company  would  then  owe  him  no  other  duty  than  not  to 
willfully  or  recklessly  injure  him,  and,  as  there  is  no  evidence  in  this 
case  which  would  justify  you  in  holding  that  the  accident  and  conse- 
quent death  of  Henry  Condran  was  due  to  recklessness  or  willful- 
ness on  part  of  the  company,  it  follows  that  in  case  you  find  that  said 
Condran  fraudulently  misstated  the  facts  of  his  situation  to  the  con- 
ductor, and  as  a  consequence  was  allowed  to  remain  on  the  train 
without  paying  his  fare,  then  your  verdict  must  be  for  the  defendant. 
On  the  other  hand,  if  the  deceased  had  in  fact  paid  his  fare,  or  if, 
being  without  means,  he  fairly  stated  his  condition  and  situation  to 
the  conductor,  and  the  latter,  in  consideration  of  the  statements  made 
him,  permitted  Condran  to  remain  on  the  train,  then  the  relation  ex- 

6  8  Parts  of  the  statement  of  facts  and  opinion  are  omitted. 


Ch.   1)  THE    CONDUCT   OF    TRANSPORTATION.  Ill 

isting  between  Conclran  and  the  company  would  be  that  of  passenger 
and  carrier." 

The  only  assignments  of  error  which  this  court  can  notice  are  those 
which  challenge  the  soundness  of  this  charge.     *     *     * 

The  rule  is  well  settled  that  where  one  gets  on  a  passenger  train 
with  the  deliberate  purpose  not  to  pay  his  fare,  and  adheres  to  that 
purpose,  or  if,  being  on  the  train,  and  having  money  with  him  with 
which  he  could  pay  his  fare,  he  falsely  and  fraudulently  represents  to 
the  conductor  that  he  is  without  means  to  pay  his  fare,  and  by  means 
of  such  false  representations  induces  the  conductor  to  permit  him  to 
remain  on  the  train  without  paying  his  fare,  the  relation  of  carrier  and 
passenger  and  the  obligations  resulting  from  that  relation  are  not 
thereby  established  between  him  and  the  company,  and  the  company 
owes  him  no  other  duty  than  not  to  willfully  or  recklessly  injure  him. 
Railway  Co.  v.  Brooks,  81  111.  250;  Railroad  Co.  v.  Michie,  83  111.  431; 
Railway  Co.  v.  Beggs,  85  111.  84,  28  Am.  Rep.  613;  Railroad  Co.  v. 
Mehlsack,  131  111.  64,  22  N.  E.  812,  19  Am.  St.  Rep.  17 ;  McVeety  v. 
Railway  Co.,  45  Minn.  269,  47  N.  W.  809.  11  L.  R.  A.  174,  22  Am. 
St.  Rep.  728;  Robertson  v.  Railway  Co.,  22  Barb.  (N.  Y.)  91;  Rail- 
way Co.  V.  Nichols,  8  Kan.  505,  12  Am.  Rep.  475 ;  Prince  v.  Railroad 
Co.,  64  Tex.  146 ;  Railway  Co.  v.  Campbell,  76  Tex.  175,  13  S.  W.  19 ; 
Way  V.  Railway  Co.,  64  Iowa.  48,  19  N.  W.  828,  52  Am.  Rep.  431 ; 
Id..  73  Iowa,  463,  35  N.  W.  525. 

The  law  will  do  nothing  to  stimulate  and  encourage  fraud  and  dis- 
honesty, and  that  would  be  the  effect  of  holding  that  a  railroad  com- 
pany owed  to  one  riding  on  its  train  under  the  conditions  named  the 
duties  and  obligations  it  owes  to  a  passenger  who  has  honestly  paid 
his  fare.  Railroad  companies  are  as  much  entitled  to  protection 
against  fraud  as  natural  persons.  It  is  a  matter  of  common  knowl- 
edge, of  which  the  court  will  take  judicial  notice,  and  of  which  the 
public  are  bound  to  take  notice,  that  railroad  passenger  trains  are 
operated  to  carry  passengers  for  hire.  They  are  not  eleemosynary 
agencies.  It  is  equally  well  known  that  the  authority  of  a  railroad 
conductor  does  not  extend  to  the  carrying  of  passengers  without  pay- 
ment of  the  regular  fare.  But,  if  he  had  such  authority,  his  assent 
obtained  by  the  fraudulent  means  mentioned  would  confer  no  rights. 
One  riding  on  a  train  by  fraud  or  stealth,  without  the  payment  of 
fare,  takes  upon  himself  all  the  risk  of  the  ride,  and  if  injured  by 
an  accident  happening  to  the  train,  not  due  to  recklessness  or  willful- 
ness on  the  part  of  the  company,  he  cannot  recover.     *     *     * 

The  judgment  of  the  Circuit  Court  is  affirmed." 

5  7  In  Austin  v.  Gt.  Western  Ry.  Co.,  L.  R.  2  Q.  B.  442  (1867),  the  carrier 
charged  half  fare  for  children  three  years  old.  A  passenger  who  did  not 
know  the  rule  took  with  her  a  child  of  three ;  the  company  let  it  ride  free  not 
knowing  its  age.    The  child  recovered  for  negligent  injury. 

In  Odell  V.  N.  Y.  C.  R.  Co.,  18  App.  Div.  12.  45  N.  Y.  Supp.  464  (1897).  a 
carrier  which  issued  a  ticket  good  for  visitors  to  the  purchaser's  family  was 


112  THE    carrier's   UNDERTAKING.  (Part  2 

held  to  owe  a  duty  of  care  to  a  person  permitted  to  ride  on  tlie  ticlcet,  wliO 
presented  it  in  good  faith,  though  not  a  visitor  witliin  its  meaning. 

In  Gary  v.  Gulf.  etc..  R.v.  -Co..  17  Tex.  Civ.  App.  129.  42  S.  W.  576  (1897), 
a  ticket  holder  who  had  taken  a  wrong  train  by  mistake  was  held  to  be  en- 
titled to  the  care  due  a  passenger  while  the  train  was  stopped  to  put  her  off. 

Where  a  railroad  by  its  own  mistake  received  and  carried  baggage  checked 
to  go  by  another  route,  it  was  held  bound  to  the  exercise  of  ordinary  care,  and 
therefore  liable  for  negligent  damage.  Fairfax  v.  N.  Y.  C.  R.  Co..  73  N.  Y. 
107,  29  Am.  Rep.  119  (1878).  But  where  a  traveler  by  steamboat,  under  a 
mistaken  belief  that  he  was  entitled  to  do  so,  checked  his  trunk  by  a  com- 
peting railroad,  which  took  charge  of  it  supposing  it  to  belong  to  a  railroad 
passenger,  it  was  held  that  the  railroad  was  not  liable  for  damage  by  negli- 
gence, though  gross,  because  under  no  duty  to  take  care.  Beers  v.  Boston,  etc., 
Co.,  67  Conn.  417.  34  Atl.  541.  32  L.  R.  A.  535,  52  Am.  St.  Rep.  293  (1890). 

Where  a  man  checked  his  trunk  by  a  railroad  over  which  he  had  no  ticket 
and  did  not  travel,  it  was  held  that  the  carrier,  being  a  gratuitous  bailee,  was 
not  liable  for  nonnegligent  loss.  Wood  v.  Me.  Cent.  R.  Co.,  98  Me.  98,  56  Atl. 
457.  99  Am.  St.  Rep.  339  (1903).  And  a  like  decision  was  reached  where, 
though  he  had  a  ticket  and  checked  his  trunk  by  means  of  it,  he  did  not  intend 
at  any  time  to  travel  on  the  ticket.  Marshall  v.  Pontiac.  etc.,  Co.,  126  Mich. 
45,  85  N.  W.  242,  55  L.  R.  A.  6.50  (1901).  But  the  carrier  has  been  held  liable 
where  the  owner  had  a  ticket  and  intended  to  use  it  on  a  later  day.  McKibbin 
V.  Wis.  Cent.  Ry..  100  Minn.  270,  110  N.  W.  964,  8  L.  R.  A.  (N.  S.)  489,  117  Am. 
St.  Rep.  689  (1907).  And  where  the  carrier  knew  that  the  owner  did  not  in- 
tend to  use  it  at  all.  Adger  v.  Blue  Ridge  Ry.  Co.,  71  S.  G.  213,  50  S.  E.  783, 
110  Am.  St.  Rep.  568  (1905). 


Ch.  2)       EXCUSES  FOR  FAILURE  TO  TRANSPORT  AND  DELIVER.  113 

CHAPTER  II 
EXCUSES  FOR  FAILURE  TO  TRANSPORT  AND  DELIVER 


HADLEY  V.  CLARKE. 

(Court  of  King's  Bench,  Trinity  .Term,  1799.     8  Term  R.  259.) 

Assumpsit  for  breach  of  a  contract  of  carriage.  A  verdict  was 
found  for  the  plaintiff,  subject  to  the  opinion  of  the  court  upon  a  case 
stated  in  which  the  following  facts  appeared : 

In  June,  1796,  plaintiff  shipped  goods  on  board  defendants'  ship 
Pomona  at  Liverpool  for  a  voyage  to  Leghorn.  The  ship  sailed  from 
Liverpool  with  goods  of  the  plaintiff  and  of  other  shippers,  and  went 
to  Falmouth  to  join  convoy  for  the  voyage  to  Leghorn.  While  she 
was  at  Falmouth,  the  British  government,  by  an  order  in  council  of 
July,  1796,  laid  an  embargo  on  vessels  bound  to  Leghorn.  By  an 
order  in  council  of  August,  1796,  such  vessels  were  freed  from  the 
embargo  so  far  as  to  permit  them  to  return  to  their  ports  of  loading 
and  to  discharge  their  cargoes.  In  June,  1798,  defendants  notified 
plaintiff'  that  unless  he  chose  to  have  his  goods  landed  at  Falmouth, 
they  would  be  taken  to  Liverpool  and  discharged  there.  In  August, 
1798,  the  ship  sailed  without  plaintiff's  consent  to  Liverpool,  where 
by  agreement  plaintiff'  received  his  goods  without  prejudice  to  his 
right  of  action.     In  October,  1798,  the  embargo  was  taken  off. 

Lord  Kenyon,  C.  J.i  *  =i=  *  It  is  admitted  that  an  embargo, 
being  imposed  during  the  war,  was  a  legal  interruption  of  the  voy- 
age ;  but  it  would  be  attended  with  the  most  mischievous  consequences 
if  a  temporary  embargo  were  to  put  an  end  to  such  a  contract  as  this, 
because,  if  it  were  to  have  that  effect,  it  must  also  have  the  effect 
of  putting  an  end  to  all  contracts  for  freight  and  for  wages.  The  dif- 
ficulty in  this  case  is  to  draw  the  line.  The  defendants  contracted 
with  the  plaintiff  to  carry  his  goods  to  Leghorn;  that  contract  was 
certainly  obligatory  at  the  time  w^hen  it  was  made ;  and  it  must  con- 
tinue-to be  binding  unless  it  has  since  been  put  an  end  to.  Then,  at 
what  time  was  it  put  an  end  to?  Was  it  put  an  end  to  during  the 
ship's  stay  at  Falmouth,  or  immediately  after  she  sailed  for  Liver- 
pool? It  would  afford  an  argument  against  the  defendants  in  this 
particular  case  that  they  kept  the  goods  on  board  during  all  this  time, 
and  thought  they  were  bound  by  this  contract.  However  I  do  not  de- 
cide this  case  on  that  ground,  but  on  the  general  ground  that  a  tem- 

1  The  statement  of  facts  lias  been  rewritten,  and  parts  of  Lord  Kenyon's 
opinion  tiave  been  omitted. 
Green  Carr. — 8 


114  THE    carrier's   UNDERTAKING.  (Part  2 

porary  interruption  of  a  voyage  by  an  embargo,  does  not  put  an  end 
to  such  a  contract  as  this.  If  this  contract  were  put  an  end  to,  it 
might  equally  be  said  that  interruptions  to  a  voyage  from  other  causes 
would  also  have  put  an  end  to  it;  e.  g.,  a  ship  being  driven  out  of 
her  course.  And  yet  that  was  never  pretended.  Instances  of  such 
interruptions  frequently  occur  in  voyages  from  the  northwest  parts 
of  this  kingdom  to  Ireland ;  sometimes  ships  are  driven  by  the  vio- 
lence of  the  winds  to  the  ports  in  Denmark,  where  they  have  been 
obliged  to  winter.     *     *     * 

Grose,  J.  This  seems  to  be  a  case  of  peculiar  hardship  either  on 
the  one  side  or  the  other,  and  therefore  we  must  determine  it  accord- 
ing to  the  strict  rules  of  law.  This  contract  was  certainly  binding 
on  these  parties  at  the  time ;  and  I  agree  with  the  defendants'  coun- 
sel that  the  true  meaning  of  it  was,  that  the  defendants  were  bound 
to  convey  the  plaintifif's  goods  within  a  reasonable  time.  After  the 
contract  was  made,  an  embargo  was  imposed,  which  was  only  a  tem- 
porary restraint,  and  prevented  the  ship's  performing  her  voyage  at 
that  time;  but  still  the  defendants  were  bound  to  comply  with  the 
terms  of  the  contract  as  soon  as  they  reasonably  could.  Even  if  we 
consider  the  embargo  to  have  the  same  effect  as  an  act  of  Parliament, 
still  it  would  only  create  a  temporary  restraint,  until  such  time  as  the 
King  in  Council  should  take  off  the  embargo.  Such  an  act  of  Parlia- 
ment would  not  dissolve,  it  would  only  suspend  the  execution  of,  the 
contract;  and  the  embargo  cannot  have  a  greater  effect.  If  the  em- 
bargo dissolved  the  contract,  when  did  the  dissolution  take  place? 
The  mere  stating  of  the  question  puts  an  end  to  all  further  inquiry. 
The  defendant's  counsel  could  not  show  at  what  precise  time  the 
contract  was  dissolved;  and  if  this  contract  were  dissolved  by  the 
embargo,  it  would  be  followed  by  the  very  alarming  consequence 
stated  at  the  bar,  that  all  the  contracts  between  the  owner  and  the  mari- 
ners would  also  be  put  an  end  to.  Here,  neither  of  the  parties  being 
in  fault,  the  strict  law  must  take  place.  The  defendants  have  not 
done  that  which,  by  their  contract,  they  were  bound  to  perform ;  and, 
therefore,  the  plaintiff  is  entitled  to  recover  the  damages  which  he 
has  sustained  by  reason  of  their  nonperformance  of  the  contract. 

Lawrence,  J.  This  is  certainly  a  case  of  hardship  on  the  defend- 
ants ;  but  I  do  not  see  any  legal  grounds  on  which  they  can  be  ex- 
cused paying  the  damages  which  the  plaintiff  has  suffered  in  con- 
sequence of  their  not  having  performed  their  engagement.  The  coun- 
sel for  the  defendants  were  driven  to  the  necessity  of  introducing 
into  this  contract  other  terms  than  those  which  it  contains.  They 
contended  that  the  defendants  were  only  bound  to  fulfill  their  engage- 
ment within  a  reasonable  time,  and  then  argued  that,  as  the  embargo 
prevented  the  completion  of  the  contract  within  a  reasonable  time, 
the  defendants  were  absolved  from  their  engagement  altogether;  but 
it  was  incumbent  on  the  defendants,  when  they  entered  into  this  con- 
tract, to  specify  the  terms  and  conditions  on  which  they  would  en- 


Ch.  2)        EXCCSES  FOR  FAILURE  TO  TRANSPORT  AND  DELIVER.  115 

gage  to  carry  the  plaintiff's  goods  to  Leghorn.  They  accordingly 
did  express  the  terms;  and  absolutely  engaged  to  carry  the  goods, 
"the  dangers  of  the  seas  only  excepted."  That  therefore,  is  the  only 
excuse  which  they  can  make  for  not  performing  the  contract.  If  they 
had  intended  that  they  should  be  excused  for  any  other  cause,  they 
should  have  introduced  such  an  exception  into  their  contract. 

In  All.  27,  this  distinction  is  taken :  "Where  the  law  creates  a  duty 
or  charge,  and  the  party  is  disabled  to  perform  it,  without  any  de- 
fault in  him,  and  hath  no  remedy  over,  there  the  law  will  excuse  him ; 
but  when  the  party,  by  his  own  contract,  creates  a  duty  or  charge 
upon  himself,  he  is  bound  to  make  it  good,  if  he  may,  notwithstand- 
ing any  accident  by  inevitable  necessity,  because  he  might  have  pro- 
vided against  it  by  his  contract."  So,  in  this  case,  there  was  one  ac- 
cident against  which  the  defendants  provided  by  their  contract :  They 
might  also  have  provided  against  an  embargo ;  but  we  cannot  vary  the 
terms  of  this  contract,  and  the  defendants  must  be  bound  by  the  terms 
of  the  contract  that  they  have  made. 

Postea  to  the  plaintiff.* 

2  See,  also,  cases  cited,  ante.  p.  ns.  note. 

In  Jackson  v.  Union  Marine  Ins.  Co..  L.  R.  10  C.  P.  125  (1874).  a  chartered 
vessel  on  her  way  to  the  port  of  loading  was  so  damaged  by  perils  of  the  sea 
that,  as  the  jury  found,  "the  time  necessary  for  getting  the  ship  off  and  re- 
IKiiring  her  so  as  to  he  a  cargo-carrj-ing  ship  was  so  long  as  to  put  an  end 
in  a  commercial  sense  to  the  commercial  speculation  entered  into  by  the  ship- 
owner and  charterers."  The  charterers  refused  to  load.  It  was  held  that 
the  shipowner  was  entitled  to  recover  from  his  underwriter  for  a  loss  of 
freight  by  peril  of  the  sea.  since  the  disaster  resulted  in  putting  an  end  to 
the  charterers'  obligation.  Bramwell.  B..  said:  "I  understand  that  the  jury 
have  found  that  the  voyage  the  parties  contemplated  had  become  impossible; 
that  a  voyage  undertaken  after  the  ship  was  sufficiently  repaired  would  have 
been  a  different  voyage,  not.  indeed,  different  as  to  the  yiorts  of  loading  and 
discharge,  but  different  as  a  different  adventure — a  voyage  for  which  at  the 
time  of  the  charter  the  plaintiff  had  not  in  intention  engaged  the  ship,  nor  the 
charterers  the  cargo ;  a  voyage  as  different  as  though  it  had  been  described 
as  intended  to  be  a  spring  voyage,  while  the  one  after  the  repair  would  be  an 
autumn  voyage.  *  *  *  Thus  A.  enters  the  service  of  B..  and  is  ill  and 
cannot  perform  his  work.  No  action  will  lie  against  him  :  but  B.  may  hire  a 
fresh  servant,  and  not  wait  his  recovery,  if  his  illness  would  put  an  end,  in 
a  business  sense,  to  their  business  engagement,  and  would  frustrate  the  ob- 
ject of  that  engagement.  A  short  illness  would  not  suffice,  if  consistent  with 
the  object  they  had  in  view.  *  *  *  There  is,  then,  a  condition  precetlent 
that  the  vessel  shall  arrive  in  a  reasonable  time.  On  failure  of  this,  the  con- 
tract is  at  au  end  and  the  charterers  discharged,  though  they  have  no  cause  of 
action,  as  the  failure  arose  from  an  excepted  peril.  *  *  *  It  remains  to 
examine  the  authorities.  The  first  in  date  relied  on  by  the  defendants  is  Had- 
ley  V.  Clarke.  Now,  it  may  safely  be  said  that  there  the  question  was  wholly 
different  from  the  present.  There  was  no  question  in  that  case  as  to  the  per- 
formance of  a  condition  precedent  to  be  ready  at  a  certain  or  within  a  rea- 
sonable time,  or  such  a  time  that  the  voyage  in  question,  the  adventure,  should 
be  accomplished  and  not  frustrated.  That  condition  had  been  performetl; 
the  ship  had  loaded  and  sailed  in  due  time.  *  *  *  Further,  in  that  case 
there  was  no  finding,  nor  anything  equivalent  to  a  finding,  that  the  objects  of 
the  parties  were  frustrated.  This  case  is  therefore  in  every  way  distinguish- 
able."    See.  also,  Stantun  v.  Richardson.  L.  R.  7  C.  P.  421,  4.32,  483  (1872). 

In  The  Savona.  [19(i0]  P.  252,  the  carrier  had  undertaken  to  transport  a 
cargo  of  coal  "perils  of  the  sea  excepted.''     By  perils  of  the  sea  the  coal  be- 


116  THE   carrier's   UNDERTAKING.  (Part  2 

ESPOSITO  V.  BOWDEN. 

"(Court  of  Queen's  Bench,  Trinity  Term,  1S57.    7  EI.  &  Bl.  763.) 

WiLLES,  J.'  The  principal  question  in  the  case  is  as  to  the  validity 
of  the  plea.  It  is,  in  etifect,  whether  a  charter  party,  made  before  the 
late  Russian  war  between  an  English  merchant  and  a  neutral  ship- 
owner, whereby  it  was  agreed  that  the  neutral  vessel  should  proceed 
to  Odessa,  a  port  of  Russia,  and  there  load  from  the  freighter's  fac- 
tors a  complete  cargo  of  wheat,  seed  or  other  grain,  and  proceed 
therewith  to  Falmouth,  with  usual  provisions  as  to  laying  days  and 
demurrage,  was  dissolved  by  the  war  between  England  and  Russia, 
alleged  by  the  charterer  in  his  plea,  which  is  to  be  taken  as  true  for 
the  purpose  of  the  present  discussion,  to  have  broken  out  before  the 
vessel  arrived  at  Odessa,  and  to  have  continued  up  to  and  during  the 

came  wet  and  was  discharged  at  a  port  of  refuge.  Because  of  the  danger  of 
spontaneous  c-ombustion  from  wet  coal  on  a  tropical  voyage  it  could  not  safely 
be  reshipped  without  drying  it  or  screening  out  the  small  pieces.  With  the 
facilities  available  it  was  reasonably  supposed  that  the  delay  and  expense 
of  either  course  would  be  out  of  proportion  to  the  value  of  the  coal.  The  ship- 
owner was  held  to  have  been  justified  in  abandoning  the  voyage  though  it 
shortly  afterward  proved  practicable  to  send  the  coal  forward. 

In  Nobel's  Explosives  Co.  v.  Jenkins,  [1S96]  2  Q.  B.  320,  a  steamer  carrying 
goods  of  different  shippers  took  as  part  of  her  cargo  explosives  shipped  un- 
der a  bill  of  lading  by  whose  terms  they  were  to  be  delivered  at  Yokohama, 
restraint  of  princes  excepted,  and  subject  to  the  master's  right  to  land  them 
at  the  nearest  safe  port  if  by  reason  of  war  Yokohama  should  be  unsafe. 
During  the  voyage,  war  began  between  China  and  Japan.  When  the  steamer 
reached  Hong  Kong,  she  was  obliged  to  fly  a  .red  flag,  which  denoted  the  pres- 
ence of  explosives.  Chinese  men  of  war  were  near,  and,  the  explosives  being 
subject  to  seizure  as  contraband  of  war,  it  was  likely  that  if  the  steamer  pro- 
ceeded she  would  be  stopped  and  searched.  Her  master  landed  the  explosives 
at  Hong  Kong  against  the  protest  of  their  owner,  continued  his  voyage  with- 
out interruption,  and  safely  delivered  the  rest  of  the  cargo  at  Yokohama.  In 
an  action  for  not  delivering  the  explosives,  Mathew,  J.,  after  expressing  an 
opinion  that  the  clauses  of  the  bill  of  lading  furnished  a  defense,  said:  "But, 
apart  from  the  terms  of  the  bill  of  lading,  it  seems  to  me  that  the  conduct  of 
the  captain  would  be  justified  by  reference  to  the  duty  imposed  uiwn  him  to 
take  reasonable  care  of  the  goods  intrusted  to  him.  Whether  he  has  dis- 
charged that  duty  must  depend  upon  the  circumstances  of  each  case,  and  here, 
if  the  goods  had  been  carried  forward,  tliere  was  every  reason  to  believe  that 
the  ship  would  be  detained  and  the  goods  of  the  plaintiff  confiscated.  In  the 
words  of  Willes,  J.,  in  Notara  v.  Henderson  [ante,  p.  7;j]:  'A  fair  allowance 
ought  to  be  made  for  the  difficulties  in  which  the  master  may  be  involved. 
*  *  *  The  place,  the  season,  *  *  *  the  opportunity  and  means  at  hand, 
the  interests  of  other  persons  concerned  in  the  adventure  and  whom  it  might 
be  unfair  to  delay  for  the  sake  of  the  part  of  the  cargo  in  peril — in  short,  all 
circumstances  affecting  risk,  trouble,  delay,  and  inconvenience — must  be  taken 
into  account.'  I  am  of  opinion  that  the  course  taken  by  the  captain  in  landing 
the  goods  and  landing  them  in  safe  custody  was  a  proper  discharge  of  his  duty. 
It  was  said  that  the  master  was  not  an  agent  for  the  shippers,  because  they 
had  protested  against  the  discharge  of  the  goods.  But,  even  if  this  information 
had  reached  the  captain,  it  would  not  have  divested  him  of  his  original  author- 
ity and  discretion  as  agent  in  any  emergency  for  the  owners  of  the  ship  and 
the  other  owners  of  the  cargo." 

Ace.  The  Styria,  186  U.  S.  1,  22  Sup.  Ct.  731,  46  U  Ed.  1027  (1902), 
8  The  statement  of  facts  and  parts  of  the  opinion  have  been  omitted. 


Ch.  2)        EXCUSES    FOR  FAILURE  TO  TRANSPORT  AND  DELIVER.  117 

time  when  the  loading  was  to  have  taken  place;  it  being  further  al- 
leged in  the  plea  that,  from  the  time  war  was  declared,  it  became  and 
was  impossible  for  the  charterer  to  perform  his  agreement  without 
dealing  and  trading  with  the  Queen's  enemies. 

It  is  now  fully  established  that,  the  presumed  object  of  war  being 
as  much  to  cripple  the  enemy's  commerce  as  to  capture  his  property, 
a  declaration  of  war  imports  a  prohibition  of  commercial  intercourse 
and  correspondence  with  the  inhabitants  of  the  enemy's  country,  and 
that  such  intercourse,  except  with  the  license  of  the  Crown,  is  ille- 

prja  I  ^         ^         ¥ 

As  to  the  mode  of  operation  of  war  upon  contracts  of  affreightment, 
made  before,  but  which  remain  unexecuted  at,  the  time  it  is  declared, 
and  of  which  it  makes  the  further  execution  unlawful  or  impossible, 
the  authorities  establish  that  the  effect  is  to  dissolve  the  contract,  and 
to  absolve  both  parties  from  further  performance  of  it.  Such  was  the 
opinion  of  Lord  Ellenborough,  at  a  time  when  the  question  must  re- 
cently have  often  occurred  and  been  well  considered  and  understood, 
in  Barker  v.  Hodgson  (1814)  3  M.  &  S.  267,  270,  where  it  was  held 
that  the  prevalence  of  an  infectious  disorder  at  the  port  of  loading, 
and  consequent  prohibition  of  intercourse  by  the  law  of  the  port,  were 
not  sufficient  to  excuse  the  charterer  from  loading;  and  Lord  Ellen- 
borough,  in  delivering  judgment,  said:  "The  question  here  is,  on 
which  side  the  burden  is  to  fall.  If,  indeed,  the  performance  of  this 
covenant  had  been  rendered  unlawful  by  the  government  of  this  coun- 
try, the  contract  would  have  been  dissolved  on  both  sides,  and  this 
defendant,  inasmuch  as  he  had  been  thus  compelled  to  abandon  his . 
contract,  would  have  been  excused  for  the  non-performance  of  it,  and 
not  liable  to  damages.  But  if  in  consequence  of  events  which  happen 
at  a  foreign  port,  the  freighter  is  prevented  from  furnishing  a  loading 
there,  which  he  has  contracted  to  furnish,  the  contract  is  neither  dis- 
solved, nor  is  he  excused  for  not  performing  it,  but  must  answer  in 
damages."  ^  A  similar  opinion  was  expressed  by  the  same  eminent 
judge  in  Atkinson  v.  Ritchie  (1809)  10  East,  530. 

Lord  Tenterden,  also,  in  his  work  on  Shipping,  states  the  law  thus : 

4  Ace.  Blight  V.  Page,  3  B.  &  P.  29.J,  note  (ISOl),  shipment  prevented  by  em- 
hargo;  Sjoerds  v.  Luscome.  16  East,  201  (1812).  shipment  prevented  by  em- 
bargo: Kirk  v.  Gibbs,  2G  L.  .T.  Ex.  209  (18.57),  permit  to  ship  refused;  Jacobs 
V.  Credit  Lyonnaise.  12  Q.  P..  D.  589  (1884),  performance  of  contract  of  sale 
prevented  bV  prohibition  of  export ;  Benson  v.  Atwood,  13  Md.  20,  71  Am.  Dec. 
611  (lSo9).  shipment  illegal ;  Holyoke  v.  Depew,  2  Ben.  334,  Fed.  Cas.  No.  6,652 
(1868).  carrier  forbidden  to  load;  Tweedie  Trading  Co.  v.  Jas.  P.  McDonald 
Co.  (D.  C.)  114  Fed.  985  (1902).  charterer  prevented  from  furnishing  vessel 
■^vith  passengers  as  agreed,  because  deportation  of  laborers  was  forbidden.  In 
the  latter  case,  Adams,  .7.,  said:  "The  question  really  is.  do  the  legal  acts  of 
the  agents  of  a  foreign  government,  which  prevent  the  full  performance  of  a 
contract  of  this  character,  control  the  rights  of  the  parties?  Contracting  par- 
ties are  subject  to  the  contingencies  of  changes  in  their  own  law,  and  liable  to 
have  the  execution  of  their  contracts  preventetl  thereby ;  but  it  is  on  the 
ground  of  illegality  not  of  impossibility.  Prevention  by  the  law  of  a  foreign 
country  is  not  usually  deemed  an  excuse,  when  the  act  which  was  contemplated 


118  THE    carrier's   UNDERTAKING.  (Part   2 

"Another  general  rule  of  law  furnishes  a  dissolution  of  these  con- 
tracts" (i.  e.,  for  the  carriage  of  goods  in  merchant  ships)  '"by  matter 
extrinsic.  If  an  agreement  be  made  to  do  an  act  lawful  at  the  time 
of  such  agreement,  but  afterwards  and  before  the  performance  of  the 
act,  the  performance  be  rendered  unlawful  by  the  government  of  the 
country,  the  agreement  is  absolutely  dissolved.  If,  therefore,  before 
the  commencement  of  a  voyage,  war  or  hostilities  should  take  place 
between  the  state  to  which  the  ship  or  cargo  belongs,  and  that  to  which 
they  are  destined,  or  commerce  between  them  be  wholly  prohibited, 
the  contract  for  conveyance  is  at  an  end,  the  merchant  must  unlade 
his  goods,  and  the  owners  find  another  employment  for  their  ship. 
And  probably  the  same  principles  would  apply  to  the  same  events  hap- 
pening after  the  commencement  and  before  the  completion  of  the  voy- 
age, although  a  different  rule  is  laid  down  in  this  case  by  the  French 
ordinance."  It  may  be  added  that  the  cases  above  put  by  Lord  Ten- 
terden  cannot  be  treated  as  isolated  propositions,  but  as  instances  of 
the  general  principle  of  law  with  which  they  are  prefaced.     *     *     * 

It  is  clear  that  the  charterer  could  maintain  no  action  against  the 
shipowner  for  refusing  to  take  on  board  a  cargo  which  the  charterer 
could  load  only  by  dealing  and  trading  with  the  enemy:  and,  on  the 
other  hand,  neither  ought  the  shipowner  to  maintain  an  action  against 
the  charterer  for  not  doing  so. 

This  is  not  an  unequal  law,  because  if  war  had  broken  out  between 
the  Czar  and  the  King  of  the  Two  Sicilies,  instead  of  Her  Majesty, 
the  vessel  would,  according  to  the  principles  stated  above,  have  been 
absolved  from  going  to  Odessa,  and  might  forthwith  have  proceeded 
upon  another  voyage.^  Even  the  common  principle  of  reciprocity, 
therefore,  points  out  that  a  similar  indulgence  ought  to  be  allowed  to 
the  merchant,  when,  in  consequence  of  war  declared  by  his  sovereign, 
he  is  involved  in  like  difficulties.  Under  such  circumstances,  in  all 
ordinary  cases,  the  more  convenient  course  for  both  parties  seems  to 
be  that  both  should  be  at  once  absolved,  so  that  each,  on  becoming 
aware  of  the  fact  of  a  war,  the  end  of  which  cannot  be  foreseen,  mak- 
ing the  voyage  or  the  shipment  presumably  illegal  for  an  indefinite  pe- 
riod, may  at  once  be  at  liberty  to  engage  in  another  adventure  without 
waiting  for  the  bare  possibility  of  the  war  coming  to  an  end  in  suffi- 
cient time  to  allow  of  the  contract  being  fulfilled,  or  some  other  op- 

by  the  contract  was  valid  in  view  of  the  law  of  the  place  where  it  was  made, 
and  a  fortiori  when  it  was  also  then  valid  at  the  place  of  performance. 

See.  also,  Goslin?  v.  ni<;siins,  1  Camp.  4.51  (1808),  unlawful  seizure  by  rev- 
enue officers;  Evans  v.  Hutton,  5  Scott's  N.  R.  G70.  12  L.  J.  C.  P.  17  (1842); 
Spence  v.  Chodwick,  10  A.  &  E.  517  (1847).  lawful  sei/Aire  of  cargo  at  port  of 
call ;  Finlay  v.  Liverix)ol,  etc.,  Co.,  23  L.  T.  2.51  (1870),  delivery  in  pursuance 
of  decree  of  foreign  port  of  departure.  But  see  So.  Ry.  Co.  v,  Heymann,  118 
Ga.  GIB,  45  S.  E.  491  (1903),  goods  confiscated  at  destination  in  another  state ; 
The  Asiatic  Prince,  108  Fed.  287,  47  C.  C.  A.  325  (1901),  delivery  at  foreign  port 
of  destination  to  customs  officers  according  to  local  law ;  Pingree  v.  Detroit, 
etc.,  R.  Co.,  post,  p.  124,  and  cases  in  note. 

6  See  The  Teutonia,  cited  ante,  p.  46,  note. 


Ch.  2)        EXCUSES  FOR  FAILURE  TO  TRANSPORT  AND  DELIVER.  119 

portunity  of  lawfully  performing  the  contract  perchance  arising.  The 
law  upon  this  subject  was  doubtless  made,  according  to  the  well- 
known  rule,  to  meet  cases  of  ordinary^  occurrence,  and  in  times  when 
to  permit  trading  with  the  enemy  even  through  neutrals  was  the  ex- 
ception, not  the  rule.  These  considerations  may  explain  the  origin  of 
the  rule  authoritatively  laid  down  in  the  books  as  to  war  at  once  work- 
ing an  absolute  dissolution.     *     *     * 

We  therefore  reverse  the  judgment  of  the  court  below,  and  give 
judgment  for  the  defendant.    Judgment  reversed.* 


THE  IDAHO. 
(Supreme  Court  of  the  United  States,  1876.    93  U.  S.  57.5,  23  L.  Ed.  978.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  New  York. 

The  libelants  claim  damages  against  the  Idaho  for  the  nondelivery 
of  165  bales  of  cotton,  part  of  a  shipment  of  200  bales  for  Liverpool, 
made  by  Thomas  W.  Mann,  and  consigned  to  the  order  of  James  Fin- 
lay  &  Co.  After  the  shipment,  the  libelants  purchased  the  cotton  from 
Mann,  w^ho  indorsed  to  them  the  ship's  bill  of  lading  therefor.  On 
the  arrival  of  the  vessel  at  Liverpool,  35  bales  were  delivered  to  Fin- 
lay  &  Co.,  but  the  remaining  165  were  delivered  to  Baring  Bros.  & 
Co.,  in  pursuance  of  an  order  from  William  J.  Porter  &  Co.  of  New 
York.  Such  a  delivery  was  not  in  accordance  with  the  stipulations 
of  the  bill  of  lading ;  but  it  is  attempted  to  be  justified  by  the  alleged 
fact  that  Porter  &  Co.  were  the  true  owners  of  the  cotton,  and  as  such 
had  a  right,  superior  to  that  of  the  shippers,  to  control  its  delivery. 
*     *     * 

Strong,  J.^  In  determining  the  merits  of  the  defense  set  up  in 
this  case,  it  is  necessary  to  inquire  whether  the  law  permits  a  common 
carrier  to  show,  as  an  excuse  for  nondelivery  pursuant  to  his  bill  of 
lading,  that  he  has  delivered  the  goods  upon  demand  to  the  true  own- 
er. Upon  this  subject  there  has  been  much  debate  in  courts  of  law, 
and  some  contrariety  of  decision : 

In  Rolle's  Abr.  606,  tit.  "Detinue,"  it  is  said:  "If  the  bailee  of 
goods  deliver  them  to  him  who  has  the  right  to  them,  he  is,  notwith- 
standing, chargeable  to  the  bailor,  who,  in  truth,  has  no  right."  And 
for  this  9  Henry  VI,  58,  is  cited.  And  so,  if  the  bailee  deliver  them 
to  the  bailor  in  such  a  case,  he  is  said  not  to  be  chargeable  to  the  true 
owmer.  Id.  607,  for  which  7  Henry  VI,  23,  is  cited.  The  reasons  giv- 
en for  such  a  doctrine,  however  satisfactory  they  may  have  been  when 

6  Ace.  Brown  v.  Delano,  12  Mass.  370  (181.5).  See  Bailey  v.  De  Crespigny, 
L.  R.  4  Q.  B.  180  (1869)  ;  The  Cargo  ex  Galam,  33  L.  J.  Ad.  97,  2  Moo.  P.  C. 
(N.   S.)  216  (1863). 

1  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


120  THE    carrier's   UNDERTAKING.  (Part  2 

they  were  announced,  can  hardly  command  assent  now.  It  is  now 
everywhere  held  that,  when  the  true  owner  has  by  legal  proceedings 
compelled  a  delivery  to  himself  of  the  goods  bailed,  such  delivery  is 
a  complete  justification  for  nondelivery,  according  to  the  directions 
of  the  bailor.  Bliven  v.  Hudson  River  Railroad  Co.,  36  N.  Y.  403. 
And  so,  when  the  bailee  has  actually  delivered  the  property  to  the 
true  owner,  having  a  right  to  the  possession,  on  his  demand,  it  is  a 
sufficient  defence  against  the  claim  of  the  bailor.  The  decisions  are 
numerous  to  this  effect.  King  v.  Richards,  6  Whart.  (Pa.)  418,  37 
Am.  Dec.  420;  Bates  v.  Stanton,  1  Duer  (N.  Y.)  79;  Hardman  v.  Wil- 
cock,  9  Bing.  382 ;  Biddle  v.  Bond,  6  Best  &  S.  225. 

If  it  be  said  that,  by  accepting  the  bailment,  the  bailee  has  estopped 
himself  against  questioning  the  right  of  his  bailor,  it  may  be  remarked 
-in  answer,  that  this  is  assuming  what  cannot  be  conceded.  Undoubt- 
edly the  contract  raises  a  strong  presumption  that  the  bailor  is  en- 
titled ;  but  it  is  not  true  that  thereby  the  bailee  conclusively  admits 
the  right  of  the  principal.  His  contract  is  to  do  with  the  property 
committed  to  him  what  his  principal  has  directed — to  restore  it,  or  to 
account  for  it.  Cheeseman  v.  Exall,  6  Exch.  341.  And  he  does  ac- 
count for  it  when  he  has  yielded  it  to  the  claim  of  one  who  has  right 
paramount  to  that  of  his  bailor.  If  there  be  any  estoppel,  it  ceases 
when  the  bailment  on  which  it  is  founded  is  determined  by  what  is 
equivalent  to  an  eviction  by  title  paramount ;  that  is,  by  the  reclamation 
of  possession  by  the  true  owner.     Biddle  v.  Bond,  supra. 

Nor  can  it  be  maintained,  as  has  been  argued  in  the  present  case, 
that  a  carrier  can  excuse  himself  for  failure  to  deliver  to  the  order 
of  the  shipper,  only  when  the  goods  have  been  taken  from  his  posses- 
sion by  legal  proceedings,  or  where  the  shipper  has  obtained  the  goods 
by  fraud  from  the  true  owner.  It  is  true  that,  in  some  of  the  cases, 
fraud  of  the  shipper  has  appeared;  and  it  has  sometimes  been  thought 
it  is  only  in  such  a  case,  or  in  a  case  where  legal  proceedings  have 
interfered,  that  the  bailee  can  set  up  the  jus  tertii.  There  is  no  sub- 
stantial reason  for  the  opinion.  No  matter  whether  the  shipper  has 
obtained  the  possession  he  gives  to  the  carrier  by  fraud  practiced  upon 
the  true  owner,  or  whether  he  mistakenly  supposes  he  has  rights  to 
the  property,  his  relation  to  his  bailee  is  the  same.  He  cannot  confer 
rights  which  he  does  not  himself  possess;  and  if  he  cannot  withhold 
the  possession  from  the  true  owner,  one  claiming  under  him  cannot. 

The  modern  and  best-considered  cases  treat  as  a  matter  of  no  im- 
portance the  question  how  the  bailor  acquired  the  possession  he  has 
delivered  to  his  bailee,  and  adjudge  that,  if  the  bailee  has  delivered 
the  property  to  one  who  had  the  right  to  it  as  the  true  owner,  he  may 
defend  himself  against  any  claim  of  his  principal.  In  the  late  case  of 
Biddle  v.  Bond,  supra,  decided  in  1865,  it  was  so  decided ;  and  Black- 
burn, J.,  in  delivering  the  opinion  of  the  court,  said  there  was  nothing 
to  alter  the  law  on  the  subject  in  the  circumstance  that  there  was  no 
evidence  to  show  the  plaintiff,  though  a  wrongdoer,  did  not  honestly 


Ch.  2)      EXCUSES  FOR  FAILURE  TO  TRANSPORT  AND  DELIVER.  121 

believe  that  he  had  the  right.  Said  he,  the  position  of  the  bailee  is 
precisely  the  same,  whether  his  bailor  was  honestly  mistaken  as  to 
the  rights  of  the  third  person  whose  title  is  set  up,  or  fraudulently 
acting  in  derogation  of  them. 

In  Western  Transportation  Company  v.  Barber,  56  N.  Y.  54-i,  the 
Court  of  Appeals  of  New  York  unanimously  asserted  the  same  doc- 
trine, saying,  "The  best-decided  cases  hold  that  the  right  of  a  third 
person  to  which  the  bailee  has  yielded  may  be  interposed  in  all  cases 
as  a  defense  to  an  action  brought  by  a  bailor  subsequently  for  the 
property.  When  the  owner  comes  and  demands  his  property,  he  is 
entitled  to  its  immediate  delivery,  and  it  is  the  duty  of  the  possessor 
to  make  it.  The  law  will  not  adjudge  the  performance  of  this  duty 
tortious  as  against  a  bailor  having  no  title."  The  court  repudiated 
any  distinction  between  a  case  where  the  bailor  was  honestly  mistaken 
in  believing  he  had  the  right,  and  one  where  a  bailor  obtained  the  pos- 
session feloniously  or  by  force  or  fraud ;  and  we  think  no  such  dis- 
tinction can  be  made. 

We  do  not  deny  the  rule  that  a  bailee  cannot  avail  himself  of  the 
title  of  a  third  person  (though  that  person  be  the  true  owner)  for 
the  purpose  of  keeping  the  property  for  himself,  nor  in  any  case 
where  he  has  not  yielded  to  the  paramount  title.  If  he  could,  he 
might  keep  for  himself  goods  deposited  with  him,  without  any  pre- 
tence of  ownership.  But  if  he  has  performed  his  legal  duty  by  de- 
livering the  property  to  its  true  proprietor,  at  his  demand,  he  is  not 
answerable  to  the  bailor.  And  there  is  no  difference  in  this  particu- 
lar between  a  common  carrier  and  other  bailees.     *     *     * 

It  follows  from  all  we  have  said  that  the  delivery  by  the  Idaho  of 
the  165  bales,  to  the  order  of  Porter  &  Co.,  was  justifiable,  and  that 
the  libelants  have  sustained  no  legal  injury.     Decree  affirmed.^ 

8  See  Biddle  v.  Bond,  6  B.  &  S.  22-5  (186.5).  bailee  permitted  to  set  up  title 
of  third  person  at  whose  request  lie  retained  the  goods  without  delivery; 
Valentine  v.  Long  Island  R.  Co..  1S7  N.  Y.  121,  79  X.  E.  S49  (1907).  carrier  per- 
mitted to  set  up  its  own  title;  Sedgwick  v.  Macy.  24  App.  Div.  1,  49  N.  Y.  Supp. 
154  (1S97);  Merchants'  Nat.  Bk.  v.  Bales,  148  Ala.  279,  41  South.  51G  (190G) ; 
Hutchinson  on  CaiTiers  (3d  Ed.)  §  751.  A  common  carrier  who,  after  de- 
mand by  an  owner  entitled  to  possession,  delivers  instead  to  the  consignee, 
is  guilty  of  conversion.  Wells  v.  Am.  Ex.  Co.,  55  Wis.  23,  11  N.  W.  537.  12  X. 
W.  441,  42  Am.  Rep.  695  (1882) ;  Lester  v.  Del.,  L.  &  W.  R.  Co.,  92  Hun,  342, 
36  N.  Y.  Supp.  907  (1895).  It  has  been  so  held  even  where  the  owner  was  a 
stranger  to  the  contract  of  carriage  and  had  failed  to  avail  himself  of  an  op- 
portunity to  replevy  the  goods.  Shellenberg  v.  Fremont,  etc..  Ry.  Co.,  45  Neb. 
487  63  N  W.  859,  50  Am.  St.  Rep.  561  (1895) ;  Georgia,  etc.,  Co.  v.  Haas, 
127  Ga.  187,  56  S.  E.  313.  119  Am.  St.  Rep.  .327  (1906).  And  see  Wilson  v. 
Anderton  IB.  &  Ad.  4.50  (1830).  Contra:  Kohn  v.  Richmond  Co.,  37  S.  C. 
1  16  S  E  376  24  L.  R.  A.  100.  34  Am.  St.  Rep.  726  (1892);  Swltzler  v.  No. 
Pac.  Ry.  Co..  45  Wash.  221,  88  Pac.  137.  12  L.  R.  A.  (N.  S.)  2.54.  122  Am.  St. 
Rep.  892  (1907).  But  a  carrier  is  not  liable  if  without  notice  of  claim  by  a 
third  person  he  has  delivered  to  the  consignee.  Xanson  v.  .Jacob.  93  :Mo.  331, 
6  S  W.  246,  3  Am.  St.  Rep.  531  (1887).  Or  has  settled  with  the  consignee 
for  goods  destroyed.    Dyer  v.  Gt.  No.  Ry.  Co.,  51  Minn.  345,  53  X.  W.  714,  38 


122  THE  carrier's  undertaking.  (Part  2 

BURGHALL  v.  HOWARD. 

(In  Guildhall,  1759.    1  H.  Bl.  366,  note.) 

One  Burghall  at  London  gave  an  order  to  Bromley  at  Liverpool 
to  send  him  a  quantity  of  cheese.  Bromley  accordingly  shipped  a 
ton  of  cheese  on  board  a  ship  there,  whereof  Howard  the  defendant 
was  master,  who  signed  a  bill  of  lading  to  deliver  it  in  good  condition 
to  Burghall  in  London.  The  ship  arrived  in  the  Thames,  but  Burg- 
hall having  become  a  bankrupt,  the  defendant  was  ordered  on  behalf 
of  Bromley  not  to  deliver  the  goods,  and  accordingly  refused,  though 
the  freight  was  tendered.  It  appeared  by  the  defendant's  witnesses 
that  no  particular  ship  was  mentioned,  whereby  the  cheese  should  be 
sent,  in  which  case  the  shipper  was  to  be  at  the  risk  of  the  peril  of 
the  seas.  The  action  was  on  the  case  upon  the  custom  of  the  realm 
against  the  defendant  as  a  carrier. 

Lord  ]\L\nsfield  was  of  opinion  that  the  plaintififs  had  no  founda- 
tion to  recover,  and  said  he  had  known  it  several  times  ruled  in  chan- 
cery, that  where  the  consignee  becomes  a  bankrupt,  and  no  part  of 
the  price  had  been  paid,  that  it  was  lawful  for  the  consignor  to  seize 
the  goods  before  they  come  to  the  hands  of  the  consignee  or  his  as- 
signees ;  and  that  this  was  ruled,  not  upon  principles  of  equity  only, 
but  the  laws  of  property. 

The  plaintiffs  were  nonsuited.* 

Am.  St.  Rep.  .506  (lSf)2).  Xor  though  he  has  notice  is  he  sniilty  of  conversion 
bv  reasonably  detaining  the  goods  for  inquiry.  Merz  v.  Chicago  &  N.  W.  Ry. 
Co..  86  Minn.'  .3.3.  90  X.  W.  7  (1002). 

9  "The  right  of  stoppage  in  transitu  is  nothing  more  than  an  extension  of 
the  right  of  lien,  which  by  the  common  law  the  vendor  has.  upon  the  goods, 
for  the  price,  originally  allowed  in  equity  and  subsequently  adopted  as  a  rule 
of  law.  By  a  bargain  and  sale  without  deliverj-  the  property  vests  in  the  ven- 
dee :  but  where,  by  the  terms  of  sale,  the  price  Is  to  be  paid  on  delivery,  the 
vendor  has  a  right  to  retain  the  goods  till  payment  is  made,  and  this  right 
is  strictly  a  lien,  a  right  to  detain  and  hold  the  goods  of  another  as  security 
for  the  payment  of  some  debt  or  performance  of  some  duty.  But  when  the 
vendor  and  vendee  are  at  some  distance  from  each  other,  and  the  goods  are  on 
their  way  from  the  vendor  to  the  vendee,  or  to  the  place  by  him  appointed 
for  their  delivery,  if  the  vendee  become  insolvent  and  the  vendor  can  re- 
possess himself  of  the  goods,  before  they  have  reached  the  hands  of  the  ven- 
dee or  the  place  of  destination,  he  has  a  right  so  to  do.  and  thereby  regain  his 
lien.  This,  however,  does  not  rescind  the  contract,  but  only  restores  the 
vendor's  lien,  and  it  can  only  take  place  when  the  property  has  vested  in  the 
vendee."  Shaw,  C.  J.,  in  Rowley  v.  Bigelow,  12  Pick.  (Mass.)  307,  23  Am.  Dec. 
607  (1832). 

"When  the  price  of  goods  sold  on  credit  is  due  and  unpaid,  and  the  vendee 
becomes  insolvent  before  obtaining  possession  of  them,  the  vendor's  right  to 
the  property  is  often  called  a  lien,  but  it  is  greater  than  a  lien.  In  the  ab- 
sence of  an  express  power,  the  lienor  usually  cannot  transfer  the  title  to  the 
property  on  which  the  lien  exists  by  a  sale  of  it  to  one  having  notice  of 
the  extent  of  his  right,  but  he  must  proceed  by  foreclosure.  When  a  vendor 
rightfully  stops  goods  in  transitu,  or  retains  them  before  transitus  has  begun, 
he  can.  by  a  sale  made  on  notice  to  the  vendee,  vest  a  purchaser  with  a  goo<l 
title.     His  right  is  very  nearly  that  of  a  pledgee,  with  power  to  sell  at  pri- 


Ch.  2)       EXCUSES  FOR  FAILURE  TO  TRANSPORT  AND  DELIVER,  123 


ALLEN  V.  MAINE  CENT.  R.  CO. 

(Supreme  Judicial  Court  of  Maine,  1887.    79  Me.  327,  9  Atl.  895,  1  Am.  St.  Rep. 

310.) 

On  report,  upon  agreed  statement  of  facts,  from  the  superior  court. 

Case  for  the  value  of  four  bales  of  woolen  rags,  of  the  value  of 
$176.41,  shipped  by  William  F.  Allen  &  Co.,  of  Philadelphia,  to  Wil- 
liam Beatty,  of  Gray,  Maine. ^'^     *     *     * 

Emery,  J.  The  only  mooted  question  in  this  case  is,  whether  the 
plaintiffs  effectually  exercised  against  the  carrier  their  clear  rigiit  of 
stopping  the  goods  in  transitu. 

The  plaintiffs  seasonably  telegraphed  and  wrote  the  proper  officer 
of  the  defendant  company  (the  carrier)  to  stop  and  return  the  goods. 
The  defendant  company  contend  the  notice  was  insufficient,  because 
there  was  no  statement  of  the  nature  or  basis  of  the  claim  to  have 
the  goods  stopped.  While  such  a  statement  is  probably  usual,  it  does 
not  seem  necessary  in  this  case.  The  carrier  is  presumed  to  know 
the  law,  and  by  such  a  notice  as  was  given  here  is  eft'ectually  apprised 
of  a  claim  adverse  to  the  consignee,  as  well  as  of  a  claim  upon  himself. 
In  Benjamin  on  Sales,  1276,  while  it  is  said  that  the  usual  mode  is  a 
simple  notice  to  the  carrier,  stating  the  vendor's  claim,  etc.,  it  is  also 
stated  that  "all  that  is  required  is  some  act  or  declaration  of  the  vendor 
countermanding  the  delivery."  Brewer,  J.,  in  Rucker  v.  Donovan,  13 
Kan.  251,  19  Am.  Rep.  81,  said:  "A  notice  to  the  carrier  to  stop  the 
goods  is  sufficient.  No  particular  form  of  notice  is  required."  In 
Cleminston  v.  Grand  Trunk  Ry.  Co.,  42  U.  C.  Q.  B.  263,  while  it  was 
held  that  the  notice  was  faulty  in  not  identifying  the  goods,  it  was 
said  that  a  specification  of  the  basis  of  the  claim  was  not  necessary. 

The   defendant    further   contends    that   the   plaintiff's    omission    to 

vate  sale  in  case  of  default."     Follett,  C.  J.,  in  TutbiU  v.  Skidmore,  124  N. 
Y.  148.  20  X.  E.  348  (1801).  .        ^,  ^     .     . 

"But  further  as  to  the  richt  of  seizing  or  stopping  the  goods  m  transitu, 
I  hold 'that  no  man  who  has  not  equity  on  his  side  can  have  that  right.  I 
will  sav  with  confidence  that  no  case  or  authority,  till  the  prt'sent  judgment, 
can  be  produced  to  show  that  he  has.  But,  on  the  other  hand,  in  a  very  able 
iudgment  delivered  by  my  Brother  Ashhurst  in  the  case  of  Lempriere  v.  Pas- 
lev  in  1788  *>  Term  Rep.  48.5.  he  laid  it  down  as  a  clear  principle  that,  as  be- 
tween a  person  who  has  an  equitable  lien  and  a  third  person  who  purchases  a 
thing  for  a  valuable  consideration  and  without  notice,  the  prior  equitable  lien 
shalf  not  overreach  the  title  of  the  vendee.  This  is  founded  on  plain  and  ob- 
vious reason:  for  he  who  has  bought  a  thing  for  a  fair  and  valuable  consid- 
eration, and  without  notice  of  any  right  or  claim  by  any  other  person,  instead 
of  having  equity  against  him,  has  equity  in  his  favor;  and  if  he  have  law 
and  equitv  both  with  him.  he  cannot  be  beat  by  a  uum  who  has  equal  equity 
only.''     Buller,  C.   J.,  in  Lickbarrow  v.  Mason.  G  East,   20,   note   (House  of 

^  The  light 'to  stop  in  transitu  exists,  though  the  goods  are  s^ent  from  seller 
to  buver  otherwise  than  by  a  carrier.    Johnson  v.  Eveleth.  93  Me.  300,  4o  Atl. 
35,  48  L.  R.  A.  50  (1899).  logs  in  possession  of  log-driviug  company. 
10  Part  of  the  statement  of  facts  is  omitted. 


124  THE  carrier's  undertaking.  (Part  2 

afterward  prove  to  the  carrier  their  right  to  stop  the  goods,  when 
requested  by  the  carrier  to  do  so,  has  vacated  their  claim,  and  released 
the  carrier  from  liability.  But  the  carrier  is  not  the  tribunal  to  de- 
termine the  rights  of  the  consignor  and  consignee.  Neither  of  these 
parties  can  be  required  to  plead  or  make  proof  before  the  carrier.  No 
man  need  prove  his  case  to  his  adversary.  It  is  sufficient  if  he  prove 
it  to  the  court.  The  carrier  cannot  conclusively  adjudicate  upon  his  own 
obligations  to  either  party.  He  is  in  the  same  position  as  is  any  man, 
against  whom  conflicting  claims  are  made.  If,  as  is  alleged  here,  the 
circumstances  are  such  that  he  cannot  compel  them  to  interplead,  he 
must  inquire  for  himself,  and  resist  or  yield  at  his  peril. ^^ 

It  is  reasonable,  however,  that  the  person  assuming  the  right  to  stop 
goods  in  transit  should  act  in  good  faith  toward  the  carrier.  He 
should,  if  requested,  furnish  him  in  due  time  with  reasonable  evi- 
dence of  the  validity  of  his  claim,  though  it  may  not  amount  to  proof. 
Should  the  consignor  refuse  such  reasonable  information  as  he  may 
possess,  such  refusal  might  be  construed  as  a  waiver  of  his  peculiar 
right,  and  might  justify  the  carrier,  after  a  reasonable  time,  in  no 
longer  detaining  the  goods  from  the  consignee.  But  there  was  no 
such  refusal  here.  The  plaintiffs  sent  forward  the  invoice  and  their 
affidavit  within  a  reasonable  time. 

The  plaintiffs  have  now  proved  their  right  to  stop  the  goods,  and 
the  defendant  company,  having  denied  that  right  without  good  rea- 
son, must  respond  in  damages. 

Judgment  for  plaintiffs  for  $176.41,  with  interest  from  the  date  of 
the  writ. 


PINGREE  V.  DETROIT,  L.  &  N.  R.  CO. 

(Supreme  Court  of  Michigan,  1887.    66  Mich.  143,  33  N.  W.  298,  11  Am.  St.  Rep. 

479.) 

Campbell,  C.  J.^-  This  case  presents  a  single  question  on  facts" 
found. 

Plaintiffs  had  a  chattel  mortgage  against  Francis  M.  and  Myron 
C.  Butts,  which  was  made  on  August  4,  1886.  The  next  day  the  two 
Butts  made  a  transfer  of  the  property  to  one  Steere.  Plaintiffs  re- 
plevied from  Steere,  and  on  August  12  shipped  the  goods  by  de- 
fendant's railroad  from  Edmore,  directed  to  Detroit,  taking  the  usual 
bill  of  lading.  On  the  same  day,  the  goods  were  taken  by  the  sheriff 
at  Stanton,  on  an  attachment  against  said  F.  J\I.  and  M.  C.  Butts,  in 
favor  of  John  W.  Fuller  and  others.  Defendant  notified  plaintiff's  of 
this   seizure.      Plaintiffs   now   sue   defendant    for   not   delivering   the 

11  But  see  Pool  y.  Columbia,  etc.,  R.  Co.,  2.3  S.  C.  286  (1885);  The  E.  H. 
Pray,  27  Fed.  474  (1SS6) ;  The  Vidette,  34  Fed.  396  (1888). 

12  Parts  of  the  disseutiug  opinion  are  omitted. 


Ch.  2)         EXCUSES    FOR  FAILURE   TO   TRANSPORT   AND   DELIVER.  125 

goods  at  Detroit.  The  question  is,  whether  the  seizure  by  the  sheriff 
exonerated  defendant  from  such  dehvery.  The  court  below  held  that 
it  did. 

There  seems  to  be  a  little  apparent  conflict  between  the  cases  on 
this  question,  but  there  can  be  no  doubt  where  the  rule  of  justice  lies. 
If  the  carrier  could  rely  against  all  the  world  upon  the  right  of  the 
consignor  to  intrust  him  with  possession,  then  it  would  be  reasonable 
to  hold  him  estopped  from  questioning  that  title.  But  there  is  no 
authority  for  such  immunity.  The  true  owner  may  take  his  property 
from  a  carrier  as  well  as  from  any  one  else.  If  a  carrier  gets  property 
from  a  person  not  authorized  to  direct  its  shipment,  he  has  been  de- 
•clared  by  the  supreme  court  of  this  state  to  have  no  lien  for  his  serv'- 
ices.  and  no  right  to  retain  the  property.  Fitch  v.  Xewberry,.  1  Doug. 
1,  40  Am.  Dec.  33.  There  is  no  sense  or  justice  in  enabling  a  consign- 
or to  compel  a  carrier,  at  his  peril,  to  defend  a  title  that  he  knows 
nothing  about,  and  has  no  means  of  defending,  unless  the  consignor 
gives  it  to  him.  In  the  present  case,  the  attachment  was  against  plain- 
tiffs' mortgagors,  and  was  regular.  It  must  have  been  levied  on  the 
claim  that  plaintiffs  had  no  right  to  the  goods.  Defendant  could  not 
have  resisted  the  seizure  without  incurring  the  risk  of  serious  civil, 
and  perhaps  criminal,  liability;  and  if  plaintiffs'  claim  is  correct,  this 
must  have  been  done  at  defendant's  own  risk  and  expense. 

This  precise  question  was  decided  in  favor  of  the  carrier  in  Stiles 
v.  Davis,  1  Black,  101,  17  L.  Ed.  33,  upon  the  ground  that  defendant 
was  not  required  to  resist  the  sheriff,  and  could  not  properly  do  so. 
This  rule  has  been  adhered  to  by  the  United  States  supreme  court, 
and  followed  to  a  considerable  extent.  It  is  the  only  rule  compatible 
with  public  order.  A  carrier  must  otherwise  resist  the  officer,  or  find 
some  one  who  will  swear  out  a  replevin,  which  a  carrier  usually  has 
not  knowledge  enough  to  justify.  If  the  carrier  cannot  call  on  the 
consignor  to  defend,  and  must  tal<e  the  risk  and  the  loss,  his  position 
would  be  one  of  hopeless  weakness.  If  he  declines  to  accept  custody 
of  goods,  he  runs  the  risk  of  an  action ;  and  if  a  wrongful  holder,  by 
doubtful  title,  or  even  by  theft,  compels  him  to  receive  the  consign- 
ment, he  can  get  the  value  from  the  carrier  who  has  had  them  seized 
by  the  true  owner,  unless  the  carrier  has  means  of  proof,  that  he 
never  can  be  presumed  to  have,  of  the  lack  of  interest  in  the  shipper. 

Whatever  may  be  a  carrier's  duty  to  resist  a  forcible  seizure  with- 
out process,  he  cannot  be  compelled  to  assume  that  regular  process 
is  illegal,  and  to  accept  all  the  consequences  of  resisting  officers  of 
the  law.  If  he  is  excusable  for  yielding  to  a  public  enemy,  he  cannot 
be  at  fault  for  yielding  to  actual  authority  what  he  may  yield  to  usurp- 
ed authority. 

I  think  the  judgment  should  be  affirmed.^ ^ 

13  Ace.  Bliven  v.  Hudson  River  R.  Co.,  36  X.  Y.  40.3  (1S67) ;  Indiana,  etc.. 
Ry.  Co.  V.  Doremeyer,  20  Ind.  App.  G05,  50  N.  E.  497,  67  Am.   St.  Rep.  264 


126  THE  carrier's  undertaking.  (Part  2 

Champlin  and  Morse,  JJ.,  concurred. 

Sherwood,  J.  (dissenting).  This  is  an  action  against  the  defendant, 
as  common  carrier,  to  recover  damages  for  its  faikire  to  carry  safely, 
and  deHver  in  Detroit,  a  quantity  of  boots  and  shoes.     *     *     * 

While  the  carrier  is  in  possession  of  the  consignor's  goods  he  is 
clothed  with  all  the  power  and  authority  to  protect  and  preserve  them 
that  the  owner  himself  would  have,  and,  while  the  goods  are  in  tran- 
sit, it  is  his  duty  to  use  all  the  means  that  human  agency  can  command 
to  give  such  protection;  and  it  is  only  after  such  means  are  exhausted, 
can  he  be  heard  in  his  defense  against  the  liability  the  common  law 
casts  upon  him  if  injury  or  damage  ensue. 

In  this  case  the  court  finds  that  the  goods  in  question  were  taken 
by  the  sherifif  of  IMontcalm  county  without  the  consent,  connivance, 
privity,   or   procurement   of   the   defendant,   and   that  it  immediately 

(1898) :  Merz  v.  Chicago,  etc..  Ry.  Co.,  86  Minn.  33.  90  N.  W.  7  (1902).  Contra: 
Edwards  v.  White  Line  Tr.  Co.,  104  Mass.  159,  6  Am.  Rep.  213  (1870).  And 
see  Gosling  v.  Higgins,  1  Camp.  451  (1808) ;  Am.  Ex.  Co.  v.  Mullins,  212  U. 
S.  311.  20  Sup.  Ct.  381.  53  L.  Ed.  525  (1909).  Compare  the  following  cases  in 
which  the  carrier  was  held  liable:  Merz  v.  Chicago  &  N.  W.  Ry.  Co.,  80  Minn. 
33.  90  N.  W.  7  (1902),  no  proof  that  writ  was  valid  on  face  or  that  court  had 
jurisdiction;  Merriman  v.  Ex.  Co..  G3  Minn.  543,  G5  N.  W.  1080  (189G).  seizure 
bv  game  warden  without  warrant  and  under  repealed  law ;  Bennett  v.  Express 
Co.,  S3  Me.  230,  22  Atl.  159,  13  L.  R.  A.  33.  23  Am.  St.  Rep.  774  (1891).  deer 
wrongfully  seized  by  game  warden ;  Nickey  v.  St.  Louis,  etc..  Ry.  Co.,  35  Mo. 
App.  79  (1889),  goods  surrendered  on  telegram  from  sheriff,  before  service  of 
warrant;  Kiff  v.  Old  Col.  R.  Co.,  117  Mass.  591,  19  Am.  Rep.  429  (1875),  at- 
tachment of  cases  which  without  carrier's  knowledge  contained  liquors,  ex- 
empt under  prohibitory  law  from  attachment  or  sale. 

AYhere  goods  are  taken  from  the  carrier  by  legal  process,  the  carrier  should 
notify  the  owner,  that  he  maj'  protect  his  interest,  and  for  a  failure  to  give 
notice  may  be  liable.  Ohio,  etc.,  Co.  v.  Yohe.  51  Ind.  181.  19  Am.  Rep.  727 
(1875).  At  least  unless  he  proves  that  no  harm  resulted.  Robinson  v.  Mem- 
phis, etc.,  R.  Co.  (C.  C.)  16  Fed.  57  (1883). 

"But  upon  the  well-settled  rules  of  the  maritime  law  it  Is  the  undoubted 
duty  of  the  master,  upon  any  interference  with  his  possession,  whether  by 
legal  proceedings  or  otiierwise,  to  interpose  for  the  owner's  protection,  and  to 
make  immediate  assertion  of  his  rights  and  interests,  by  whatsoever  measures 
are  appropriate  at  the  time  and  place.  To  that  extent  the  master  is  bound 
to  take  part  In  legal  proceedings,  and  to  continue  them  until,  after  inform- 
ing his  absent  consignee  both  of  the  facts  and  of  the  local  law  so  far  as  need 
be,  the  owner  has  a  reasonable  opportunity  to  take  upon  himself  the  burdeu  of 
the  litigation."    Brown,  J.,  in  The  M.  M.  Chase  (D.  C.)  37  Fed.  70S  (1889). 

Garnishment  statutes  are  usually,  but  not  always,  regarded  as  not  apply- 
ing to  goods  in  the  hands  of  common  carriers,  which  have  not  reached  their 
destination.  The  carrier's  duty  as  to  such  goods  is  more  than  simply  to  make 
delivery.  Stevenot  v.  Eastern  Ry.  Co.,  61  Minn.  104,  (j3  X.  W.  256^  28  L.  R. 
A.  600  (1895) ;  Bates  v.  Railway  Co.,  60  Wis.  296,  305,  19  N.  W.  72.  50  Am.  Rep. 
369  (1884) ;  Adams  v.  Scott,  104  Mass.  164  (1870) ;  Hutch,  on  Carriers  (3d  Ed.) 
§§  746-748 ;  28  L.  R.  A.  600  note ;   14  Harvard  Law  Rev.  384. 

As  to  a  carrier's  liability  for  goods  confiscated  by  government,  see  Nash- 
ville, etc.,  R.  Co.  V.  Estis,  7  Heisk.  (Tenn.)  622.  24  Am.  Rep.  289  (1872) ;  Rail- 
road Co.  V.  Hurst,  11  Heisk.  (Tenn.)  625  (1872) ;  Wells  v.  Steamship  Co.,  4 
Cliff.  228,  Fed.  Cas.  No.  17.401  (1874);  Nashville,  etc.,  R.  Co.  v.  Estes.  10  Lea 
(Tenn.)  749  (1882) ;    So.  Ry.  Co.  v.  Heymann.  118  Ga.  616,  45  S.  E.  491  (1903). 

It  is  no  excuse  for  a  carrier's  failure  to  deliver  that  he  reasonably  believed 
the  consignee  would  use  the  goods  to  commit  a  crime.  Railroad  Co.  v.  O'Don- 
nell,  49  Ohio  St.  489,  32  N.  E.  476  (1892). 


Ch.  2)    EXCUSES  FOR  FAILURE  TO  TRANSPORT  AND  DELIVER.      127 

notified  the  plaintiffs  of  the  seizure;  but  this  is  not  enough  to  excul- 
pate the  defendant  from  liabiHty,  under  the  facts  found.  There  is  no 
pretense  that  the  writ  under  which  the  sheriff  acted  ran  against  the 
defendant,  the  consignors,  or  this  property,  nor  yet  against  the  latter's 
vendor  of  the  goods.  It  does  not  appear  that  he  was  directed  by  the 
writ  to  levy  it  upon  any  specific  property  in  the  custody  of  defendant 
or  of  the  consignors.     *     *     * 

The  sheriff  who  took  this  property  from  the  defendant  had  no  more 
right,  so  far  as  this  record  shows,  to  take  the  same,  than  any  other 
citizen  of  Montcalm  county.  The  defendants  suffered  the  property 
to  be  taken  from  the  carrier  by  a  trespasser,  and  this  brings  the  case 
clearly  within  the  liability  of  the  undertaking,  and  entitles  the  plain- 
tiffs to  a  recovery.     *     *     * 


ASSICURAZIONI  GENERALI  v.  STEAMSHIP  BESSIE 
MORRIS  CO. 

(Court  of  Appeal,  [1892]  2  Q.  B.  652.) 

Lord  Esher,  jM.  R.^*  One  of  the  questions  which  have  been  dis- 
cussed is  the  construction  of  the  charter  party.  The  charter  party  is 
a  contract  between  the  shipowner  and  the  charterer  that  the  former 
will  take  the  cargo  offered  by  the  latter,  and  will  carry  it  as  directed 
by  the  charterer  to  a  safe  port  in  the  United  Kingdom,  unless  pre- 
vented by  the  perils  of  the  sea,  which  are  excepted  in  the  charter 
party.  It  is  an  absolute  contract  by  the  shipowner  to  carry  the  goods 
to  the  port  named  by  the  charterer,  which  in  this  case  was  London, 
unless  prevented  by  the  excepted  perils  of  the  sea.  It  became  an 
absolute  contract  on  the  part  of  the  shipowner  to  convey  the  goods 
to  London,  and  the  only  thing  which  could  excuse  him  from  doing 
so  was  that  he  had  been  prevented  by  the  perils  of  the  sea. 

In  applying  this  to  the  facts  of  the  case,  we  have  to  see  whether 
the  shipowner,  who  never  brought  the  ship  to  London,  was  prevented 
from  so  doing  by  the  perils  of  the  sea.  The  ship  was  stranded  near 
Gibraltar.  If  she  could  not  have  been  got  off  it  is  obvious  that  she 
would  have  been  prevented  from  fulfilling  the  voyage  by  the  perils  of 
the  sea.  But  she  was  got  off.  If  she  had  been  got  off  as  a  mere 
wreck,  as  explained  by  Maule,  J.,  in  Moss  v.  Smith,  9  C.  B.,  at  pages 
102,  103,  and  could  not  have  been  repaired,  either  where  she  was  or 
at  any  other  place,  so  as  to  be  able  to  complete  the  voyage  within  any 
time  which  could  be  considered  a  fulfillment  of  the  contract,  she 
would  have  been  prevented  by  the  perils  of  the  sea  from  fulfilling  that 
contract,   though  she  might  have  been  able   to  perform  some  other 

14  The  statement  of  facts,  parts  of  the  opinions,  and  a  concurring  opinion 
by  Kay,  L.  J.,  have  been  omitted. 


128  THE  carrier's  undertaking.  (Part  2 

voyage.^"  But,  in  fact,  the  ship  was  got  off,  and  she  was  taken  to 
Gibraltar,  where  she  could  be  repaired. 

What  is  the  duty  of  the  shipowner  in  such  a  case?  His  duty  is  to 
repair  the  ship,  if  it  is  possible  for  him  to  do  so.  That  the  ship  in  the 
present  case  could,  in  fact,  be  repaired  cannot  be  denied.  But,  as 
Alaule,  J.,  said,  in  the  case  to  which  I  have  referred,  the  possibility 
must  be  a  business  possibility.  If  it  is  possible  in  a  business  sense  of 
the  word  to  repair  the  ship,  the  shipowner  is  bound  to  repair  her. 
If  the  cost  of  the  repairs  necessary  to  enable  her  to  complete  the 
voyage  contracted  for  would  be  more  than  the  benefit  which  the 
owner  would  derive  from  them,  then  it  would  be  impossible  in  a  busi- 
ness sense  to  repair  her.  *  *  *  The  repairs  were  executed  at  a 
cost  very  far  less  than  the  value  of  the  ship,  and,  that  being  so,  no 
reasonable  shipowner  having  regard  to  his  own  interests  would  have 
failed  to  db  the  repairs. 

The  shipowners  were  prevented  from  performing  the  voyage,  not 
by  the  perils  of  the  sea,  but  their  own  willful  disregard  of  their  con- 
tract, or,  at  any  rate,  by  their  misreading  of  it.  *  *  *  3^1-  before 
starting  upon  the  voyage  they  borrowed  some  money  of  the  charter- 
ers. *  *  *  'pbe  shipowners  have  had  the  benefit  of  every  shilling 
of  the  disbursements,  and  they  are  bound  to  repay  to  the  plaintiffs 
the  sum  which  they  advanced.     Beyond  that  the  plaintiffs  are  entitled 

15  "It  is  suggested  that  here  the  coTitract  was  for  the  carriage  of  the  goods 
in  the  ship  North  America,  and  not  in  any  other  ship,  and  that  when  she 
was  lost  the  duties  of  carrier  were  ended,  and  the  contract  prevented  from 
heing  performed,  by  the  perils  of  the  seas.  But  this  is  not  a  true  view  of  the 
law  upon  this  subject.  The  gold  coin  was  to  be  transported  in  that  ship, 
if  she  was  in  a  condition  to  carry  it.  But  when  she  became  disabled,  it  was 
the  duty  of  the  carrier  master  to  carry  it  on  or  send  it  in  another  ship,  if 
])racticable."  Story,  J.,  in  King  v.  Shepherd,  3  Story,  349,  Fed.  Gas.  No.  7.S04 
(1844). 

By  the  maritime  law  "as  understood  in  England,  the  master,  from  the  neces- 
sity of  the  case,  had  the  right,  and  by  our  law  the  duty,  in  case  of  disaster  to 
his  ship,  to  tranship  the  goods  and  send  them  on  by  another  vessel,  if  one 
could  be  had.  The  INIaggie  Hammond,  9  Wall.  435.  458  [19  L.  Ed.  772] ;  3 
Kent,  Com.  212."  Grav,  J.,  in  Harrison  v.  Fortlage,  IGl  U.  S.  57,  G5,  IG  Sup.  Ct. 
488,  490,  40  L.  Ed.  GIG  (1S9G). 

A  carrier  who  justifiably  tranships  in  order  to  fulfill  his  contract  of  car- 
riage is  entitled  on  delivery  at  destination  to  full  freight,  though  he  has 
shipped  bv  another  carrier  and  at  a  lower  rate.  Shipton  v.  Thornton,  9  A. 
&  E.  314  (1S3S).  And  is  liable  for  loss,  The  Bernina,  L.  R.  12  P.  D.  36  (1886). 
In  Shipton  v.  Thornton,  Lord  Denman,  C.  J.,  said:  "It  may  well  be  that  the 
master's  right  to  tranship  may  be  limited  to  those  cases  in  which  the  voj'age 
may  be  completed  on  its  original  terms  as  to  freight,  so  as  to  occasion  no 
farther  charge  to  the  freighter,  and  that,  where  the  freight  cannot  be  pro- 
cured at  that  rate,  another  but  familiar  principle  will  be  introduced,  that 
of  agency  for  the  merchant.  *  *  *  The  case  now  put  supposes  an  Inability 
to  complete  the  contract  on  its  original  terms  in  another  bottom,  and  there- 
fore the  owner's  right  to  tranship  will  be  at  end ;  but  still,  all  circum- 
stances considered,  it  may  be  greatly  for  the  benefit  of  the  freighter  that  the 
goods  should  be  forwarded  to  their  destination,  even  at  an  increased  rate 
of  freight,  and,  if  so,  it  will  be  the  duty  of  the  master  as  his  agent  to  do  so. 
In  such  a  case,  the  freighter  will  be  bound  by  the  act  of  his  agent,  and,  of 
course,  be  liable  for  the  increased  freight."    See  ante,  p.  58,  note. 


Ch.2)         EXCUSES    FOR  FAILURE   TO   TRANSPORT   AND   DELIVER.  129 

to  any  damages  which  they  have  suffered  and  which  are  the  natural 
result  of  the  shipowners'  default.     *     *     * 

Bowmen,  L.  J.  I  am  of  the  same  opinion.  *  *  *  in  the  pres- 
ent case,  so  far  from  the  ship  being  unnavigable,  or  having  been  treat- 
ed as  such,  she  was  repaired,  and  was  put  into  a  condition  fit  for  the 
performance  of  her  voyage.  The  test,  what  is  the  state  of  circum- 
stances which  entitles  the  shipowner  to  abandon  the  voyage?  is  ob- 
viously applicable  only  when  he  acts  upon  it;  and  if,  whatever  the 
expense  of  repairing  the  ship  may  be,  he  submits  to  incur  it,  it  would 
be  absurd  to  discuss  the  question  of  constructive  loss.     *     *     * 


LAWS  OF  OLERON,  art.  XXIII :  "A  merchant  freights  a  ship 
and  loads  her,  and  sets  her  on  her  way,  and  the  ship  enters  a  port, 
and  remains  there  so  long  that  money  fails  them;  the  master  keeps 
well,  and  he  may  send  to  his  own  country  to  seek  for  money;  but  he 
ought  not  to  lose  time,  for  if  he  does  so,  he  is  bound  to  indemnify 
the  merchants  for  all  the  damage  which  they  shall  incur.  But  the 
master  may  w^ell  take  of  the  wines  of  the  merchants  and  sell  them  to 
obtain  provisions.  And  when  the  ship  shall  have  arrived  at  her  right 
discharge,  the  wines  which  the  master  shall  have  taken  ought  to  be 
valued  at  the  same  market  price  at  which  the  others  shall  be  sold, 
neither  at  a  higher  nor  at  a  lower  price.  And  the  master  ought  to 
have  his  freight  of  those  wines,  as  he  shall  have  of  the  others.  And 
this  is  the  judgment  in  this  case."  ^® 


BUTLER  V.  MURRAY. 

(Court  of  Appeals  of  New  York,  1864.    30  N.  Y.  88,  86  Am.  Dec.  355.) 

This  was  an  action  by  N.  Rogers  &  Co.,  of  which  firm  Charles  But- 
ler was  the  surviving  partner,  against  D.  Colder  Murray  and  others, 
owners  of  the  schooner  Pedee,  to  recover  the  value  of  a  quantity  of 
hides  shipped  on  board  that  vessel  at  Aspinwall,  consigned  to  the 
plaintiffs  at  New  York,  and  which  were  never  delivered  to  them. 

The  defense  was  that,  the  vessel  having  put  into  the  port  of  Car- 
thagena  in  distress,  the  hides  were  found  to  be  in  a  perishing  condi- 
tion, and  that  the  master,  acting  in  good  faith  and  in  the  exercise  of 
a  sound  discretion,  to  prevent  further  loss,  had  caused  them  to  be 

16  "If  the  goods  fetch  more  at  the  intermediate  port,  the  owner  of  the  cargo 
would  naturally  elect  to  treat  the  matter  as  a  loan;  but  when  he  thinks  it 
for  his  interest  to  insist,  and  does  insist,  on  an  indemnity  on  the  footing  that 
the  value  of  the  goods  must  be  treated  as  if  they  were  carried  to  their  destina- 
tion, then  he  must  allow  for  the  freight  that  would  have  been  earned  by  car- 
rying them  there."    Brett,  J.,  in  Hopper  v.  Burness,  1  C.  P.  D.  137,  141  (1876). 

Gkeen  Caer. — 9 


130  THE   CAKRIEU'S   UNDERTAKING.  (Part  2 

sold  at  auction,  and  that  the  defendants,  after  deducting  the  amount 
due  for  general  average  and  expenses,  had  tendered  the  proceeds  to 
the  plaintiffs.  *  *  *  The  learned  judge,  at  the  conclusion  of  the 
testimony,  *  *  *  instructed  the  jury  that  the  plaintiffs  were  en- 
titled to  recover,  and  that  the  only  question  for  them  to  decide,  was 
the  amount  of  damages.  To  which  the  defendant's  counsel  excepted. 
The  jury  found  a  verdict  in  favor  of  the  plaintiffs  for  $881.38;  and, 
the  judgment  entered  thereon  having  been  affirmed  at  General  Term, 
the  defendants  took  this  appeal. 

MuLiviN,  J.^^  The  master  of  a  vessel  is,  for  most  purposes,  the 
agent  of  the  owners  of  the  ship  and  cargo ;  but  that  agency  does  not 
extend  to  a  sale  of  either,  unless  there  is  a  necessity,  at  the  time,  for 
so  doing.    Abbott  on  Shipping,  365  et  seq.  in  notes. 

The  degree  of  the  necessity  which  must  be  shown  to  have  existed, 
in  order  to  justify  a  sale  of  ship  or  cargo,  has  been  differently  stated 
by  different  judges  and  writers  on  maritime  law.     *     *     * 

The  difficulty  lies,  not  so  much  in  finding  the  rule,  as  in  applying  it 
in  a  given  case.  There  is  no  doubt  but  that,  in  order  to  justify  the 
sale  of  a  cargo  at  an  intermediate  port,  several  things  must  concur: 
(1)  There  must  be  a  necessity  for  it,  arising  either  from  the  nature 
or  condition  of  the  property,  or  from  the  inability  to  complete  the 
voyage  by  the  same  ship  or  to  procure  another.  (2)  The  master 
must  have  acted  in  good  faith.  (3)  He  must,  if  practicable,  consult 
with  the  owner  before  selling.  Abbott  on  Shipping  4-47,  and  notes; 
New  England  Insurance  Co.  v.  Brig  Sarah  Ann,  13  Pet.  387,  10  L. 
Ed.  213;  Bryant  v.  Commonwealth  Insurance  Co.,  13  Pick.  (Mass.) 
543. 

No  question  as  to  the  good  faith  of  the  master,  or  of  his  inability 
under  the  circumstances  to  consult  with  the  owners,  is  raised.  But  it 
is  insisted  that  a  necessity  for  the  sale  is  not  proved,  for  two  reasons : 
(1)  Because  the  property,  although  injured,  could,  by  a  moderate 
outlay,  have  been  put  in  order,  so  as  to  be  carried  to  New  York,  with- 
out further  material  injury;  and  (2)  the  master  should  have  sent 
forward  the  property  by  another  vessel. 

Neither  the  master  nor  owners  were  answerable  for  the  delay  which 
had  occurred  after  leaving  Aspinwall.  It  was  caused  by  a  visitation  of 
Providence,  against  which  human  foresight  could  not  guard.  The 
damage  to  the  hides  arose  from  their  own  inherent  properties,  and 
the  heat  of  the  climate  in  which  the  voyage  was  made.  Before  unload- 
ing the  hides  at  Carthagena,  the  worms  that  caused  the  damage  were 
discovered  on  the  deck  of  the  vessel.  When  the  hides  were  taken 
from  the  hold  and  put  on  the  deck,  the  hair  was  found  eaten  off,  and 
holes  eaten  in  them ;  and,  if  permitted  to  remain  in  the  vessel,  it  is  not 
denied  but  that  they  would  have  been  utterly  ruined.  The  master 
caused  them  to  be  beaten  while  on  the  deck,  which  it  is  shown  is  one 

17  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


Ch.  2)         EXCUSES    FOR   FAILURE   TO   TRANSPORT  AND   DELIVER.  131 

means  of  removing,  in  whole  or  in  part,  the  vermin  that  were  causing 
the  injury.  The  vessel  was  found  not  to  be  in  a  condition  to  continue 
the  voyage,  and  another  ship  might  have  been  procured  to  carry  the 
hides  to  New  York,  as  the  purchasers  of  them  at  the  master's  sale 
chartered  a  vessel  which  brought  them  to  New  York.  *  *  *  There 
is  no  evidence  that  the  master  knew  that  washing  in  sea  water  would 
be  any  greater  protection  than  the  means  he  had  already  employed. 
Under  these  circumstances,  he  summoned  three  respectable  men,  deal- 
ers in  hides  and  the  shipment  thereof  from  Aspinwall  to  Carthagena, 
and  from  the  latter  place  to  New  York,  to  examine  the  hides  and 
declare  what  it  was  proper  for  him  to  do  under  the  circumstances. 
They  advised  a  sale,  and  the  hides  were  sold,  and,  as  witnesses,  they 
swear  that  the  advice  was  given  in  good  faith.  This  advice  was  not 
conclusive;  but  the  question  is  whether,  on  view  of  the  facts  then 
known  to  the  parties,  it  was  apparently  necessary  to  sell  the  hides. ^^ 
*  *  *  If  the  jury  should  believe,  from  the  evidence  of  the  wit- 
nesses, that,  judging  from  the  condition  of  the  hides,  as  they  were 
when  found  on  the  wharf  at  Carthagena,  that  if  reshipped  by  any 
vessel,  and  sent  to  New  York  within  a  reasonable  time,  they  would  be 
so  damaged  as  to  be  practically  valueless  as  hides,  the  defendants 
would  be  entitled  to  a  verdict. 

Although  it  has  happened  that  the  hides  did  arrive  in  New  York, 
and  were  sold  for  a  much  larger  price  than  that  received  in  Cartha- 
gena, and  although  it  is  competent  to  prove  those  facts,  and  for  the 
jury  to  consider  them,  in  determining  the  question  of  necessity,  yet 
the  question,  after  all,  must  be  determined  upon  the  facts  existing  at 
the  time  when  the  sale  was  made.  In  every  aspect  in  which  I  have 
examined  the  case,  a  case  is  presented  which  made  it  necessary  to 
submit  it  to  the  jury;  and  because  it  was  not  done,  the  judgment  of 
the  Supreme  Court  must  be  reversed,  and  a  new  trial  ordered,  costs 
to  abide  event. 

Judgment  reversed,  and  new  trial  awarded.^® 


LAWS  OF  OLERON,  art.  VIII :  "If  a  vessel  be  laden  to  sail  from 
Bordeaux  to  Caen,  or  any  other  place,  and  it  happens  that  a  storm 
overtakes  her  at  sea,  so  violent  that  she  cannot  escape  without  casting 
some  of  the  cargo  overboard  for  lightening  the  vessel,  and  preserving 
the  rest  of  the  lading,  as  well  as  the  vessel  itself,  then  the  master 
ought  to  say,  'Gentlemen,  we  must  throw  part  of  the  goods  over- 
is  Ace.  The  Amelie.  6  Wall.  18.  29.  18  L.  Ed.  806  (18C7).  Compare  Myers 
V.  Baymore,  10  Pa.  114,  49  Am.  Dec.  586  (1848). 

19  See,  also,  Am.  Ex.  Co.  v.  Smith.  33  Ohio  St.  511.  31  Am.  Rep.  561  (1878), 
perishable  goods  sold  in  transit ;  Hull  v.  Mo.  Pac.  Ry.  Co.,  60  Mo.  App.  593 
(1895) ;  Dudley  v.  Chic.  M.  &  St.  P.  Ry.  Co..  58  W.  Va.  604,  52  S.  E.  718,  3  L. 
R.  A.  (N.  S.)  il35,  112  Am.  St.  Rep.  1027  (1906),  goods  sold  at  destination  on 
consignee's  refusal  to  receive ;    Briggs  v.  Boston,  etc.,  Co.,  post,  p.  295. 


Iii2  THE  carrier's  undertaking.  (Part  2 

board;'  and  if  there  are  no  merchants  to  answer  him,  or  if  those  that 
are  there  approve  of  what  he  says  by  their  silence,  then  the  master 
may  do  as  he  thinks  fit;  and  if  the  merchants  are  not  pleased  with 
his  throwing  over  any  part  of  the  merchandise,  and  forbid  him,  yet 
the  master  ought  not  to  forbear  casting  out  so  many  of  the  goods  as 
he  shall  see  to  be  for  the  common  good  and  safety;  he  and  the  third 
part  of  his  mariners  making  oath  on  the  Holy  Evangelists,  when  they 
arrive  at  their  port  of  discharge,  that  he  did  it  only  for  the  preserva- 
tion of  the  vessel,  and  the  rest  of  the  lading  that  remains  yet  in  her. 
And  the  wines,  or  other  goods,  that  were  cast  overboard,  ought  to  be 
valued  or  prized  according  to  the  just  value  of  the  other  goods  that 
arrive  in  safety.  And  when  these  shall  be  sold,  the  price  or  value 
thereof  ought  to  be  divided  livre  a  livre  among  the  merchants.  The 
master  may  compute  the  damage  his  vessel  has  sustained,  or  reckon 
the  freight  of  the  goods  thrown  overboard  at  his  own  choice.  If  the 
master  does  not  make  it  appear  that  he  and  his  men  did  the  part  of 
able  seamen,  then  neither  he  nor  they  shall  have  anything.  The 
mariners  also  ought  to  have  one  tun  free,  and  another  divided  by 
cast  of  the  dice,  according  as  it  shall  happen,  and  the  merchants  in 
this  case  may  lawfully  put  the  master  to  his  oath." 


Sir  Wiluam  Scott  in  THE  GRATITUDINE,  3  C.  Rob.  240 
(1801) :  "It  must  unavoidably  be  admitted  that  in  some  cases  he  (the 
master  of  a  ship)  must  exercise  the  discretion  of  an  authorized  agent 
over  the  cargo,  as  well  in  the  prosecution  of  the  voyage  at  sea,  as  in 
intermediate  ports,  which  he  may  be  compelled  to  enter.  The  case 
of  throwing  overboard  parts  of  the  cargo  at  sea  is  of  that  kind.  Noth- 
ing can  be  better  settled  than  that  the  master  has  a  right  to  exercise 
this  power,  in  case  of  imminent  danger.  He  may  select  what  articles 
he  pleases;  he  may  determine  what  quantity;  no  proportion  is  limit- 
ed ;  a  fourth,  a  moiety,  three-fourths,  nay,  in  cases  of  extreme  neces- 
sity, when  the  lives  of  the  crew  cannot  otherwise  be  saved,  it  can 
never  be  maintained  that  he  might  not,  because  it  can  never  be  for 
the  benefit  of  the  cargo,  throw  the  whole  cargo  overboard.  The  only 
obligation  will  be  that  the  ship  should  contribute  its  average  propor- 
tion." 20 

20  "One  other  exception  seems  to  be  made  by  the  common  law,  which  has 
not  so  far  been  noticed,  viz.,  that  where  goods  have  been  intentionally  and 
properly  destroyed  or  damaged  dnring  the  course  of  a  voyage,  in  order  to 
save  the  ship  and  the  remainder  of  the  cargo  from  a  danger  which  was  common 
to  the  whole,  the  shipowner  is  not  answerable.  Where  goods  have  been 
thus  sacrificed,  the  law,  except  in  certain  cases,  e.  g.,  deck  cargo,  gives  the 
owner  a  right  to  contributions  towards  his  loss  from  those  whose  property 
is  saved.  But  otherwise  no  claim  for  the  goods  or  their  value  can  be  made 
against  the  shipowner.  An  illustration  of  this  principle  is,  where  water 
has  been  poured  into  the  bold  of  a  ship  in  order  to  extinguish  a  fire."  Carver, 
Carriage  by  Sea,  §  15. 


/ 


Ch.  2)         EXCUSES    FOR   FAILURE   TO   TRANSPORT   AND   DELIVER.  133 

Gray,  J.,  in  RALLI  v.  TROOP,  loT  U.  S.  386,  15  Sup.  Ct.  GoT,  39 
L.  Ed.  743  (1895) :  The  law  of  general  average,  coming  down  to  us 
from  remote  antiquity,  is  derived  from  the  law  of  Rhodes,  through  the 
law  of  Rome,  and  is  part  of  the  maritime  law,  or  law  of  the  sea,  as 
distinguished  from  the  municipal  law,  or  law  of  the  land. 

The  typical  case  is  that  mentioned  in  the  Rhodian  law  preserved  in 
the  Pandects  of  Justinian,  by  which,  if  a  jettison  of  goods  is  made  in 
order  to  lighten  a  ship,  what  is  given  for  the  benefit  of  all  is  to  be 
made  good  by  the  contribution  of  all.  "Cavetur  ut,  si  levandae  navis 
gratia  j  actus  mercium  f actus  est,  omnium  contributione  sarciatur,. 
quod  pro  omnibus  datum  est."    Dig.  14,  2,  1,  1. 

Another  case  of  general  average,  put  in  the  Pandects,  and  the  only 
one,  beside  jettison,  mentioned  in  the  Judgments  of  Oleron,  or  in  the 
Laws  of  Wisby,  is  the  cutting  away  of  a  mast  to  save  ship  and  cargo. 
Dig.  14,  2,  1,  4;   Oleron,  arts.  8,  9;  Wisby,  arts.  7,  11,  14. 

The  distinction  between  voluntary  and  compulsory  sacrifice  is 
well  illustrated  by  another  case  stated  in  the  Pandects,  recognized  in 
the  earliest  English  case  on  general  average,  and  approved  in  all  the 
books,  in  which  money  voluntarily  paid  by  the  master  to  ransom  the 
ship  and  cargo  from  pirates  is  to  be  contributed  for;  but  not  so  as 
to  goods  or  money  forcibly  taken  by  pirates.  Dig.  14,  3,  1,  5 ;  Hicks 
V.  Palington  (33  Eliz.)  Moore,  397. 

In  the  courts  of  England  and  America  general  average  has  not  been 
restricted  to  the  cases  put  by  way  of  illustration  in  the  Rhodian  and 
Roman  laws;  but  it  has  never  been  extended  beyond  the  spirit  and 
principle  of  those  laws.     *     *     * 

There  has  been  much  discussion  in  the  books  as  to  whether  the  right 
to  a  general  average  contribution  rests  upon  natural  justice,  or  upon 
an  implied  contract,  or  upon  a  rule  of  the  maritime  law  known  to  and 
binding  upon  all  owners  of  ships  and  cargoes.  But  the  difference 
has  been  rather  as  to  forms  of  expression  than  as  to  substantial  prin- 
ciples or  legal  results,     *     *     *    . 

The  law  of  general  average  is  part  of  the  maritime  law,  and  not  of 
the  municipal  law,  and  applies  to  maritime  adventures  only. 

To  constitute  a  general  average  loss,  there  must  be  a  voluntary 
sacrifice  of  part  of  a  maritime  adventure,  for  the  purpose  and  with 
the  efifect  of  saving  the  other  parts  of  the  adventure  from  an  imminent 
peril  impending  over  the  whole. 

The  interests  so  saved  must  be  the  sole  object  of  the  sacrifice,  and 
those  interests  only  can  be  required  to  contribute  to  the  loss.     The 


134  THE  carrier's  undertaking.  (Part  2 

safety  of  property  not  included  in  the  common  adventure  can  neither 
be  an  object  of  the  sacrifice  nor  a  ground  of  contribution. 

As  the  sacrifice  must  be  for  the  benefit  of  the  common  adventure, 
and  of  that  adventure  only,  so  it  must  be  made  by  some  one  specially 
charged  with  the  control  and  the  safety  of  that  adventure,  and  not 
be  caused  by  the  compulsory  act  of  others,  whether  private  persons 
or  public  authorities.     *     *     * 


Ch.  3)  THE  COMPLETION    OF  THE   CARRIER'S    UNDERTAKING.  135 

CHAPTER  III 
THE  COMPLETION  OF  THE  CARRIER'S  UNDERTAKING 


SECTION  1.— PLACE  AND  MANNER  OF  TENDER  TO  CON- 
SIGNEE 


GIBSON  V.  CULVER. 
(Supreme  Court  of  New  York,  1837.    17  Wend.  305,  31  Am.  Dec.  297.) 

This  was  an  action  on  the  case  ag"ain.st  the  defendants  as  common 
carriers,  tried  in  the  Rensselaer  circuit  in  March,  1835.  They  were  the 
owners  of  a  stage,  in  which  they  carried  the  mail,  and  also  passengers 
and  goods,  from  Sandlake,  in  Rensselaer  county,  to  Albany,  via  Troy, 
being  part  of  a  line  from  Boston  to  Albany.  The  plaintiff  put  a  box 
of  combs  in  the  stage  at  Leominster,  in  Massachusetts,  directed  to 
"Messrs.  Vail  &  Co.,  Troy,  N.  Y.,"  which  arrived  safely  at  Sandlake, 
and  was  there  taken  into  the  stage  of  the  defendants  and  carried  to 
Troy,  and  left  at  the  stage  house  there,  being  the  only  place  in  Troy 
where  the  stage  stopped,  except  at  the  post  office  for  the  delivery  of 
the  mail.  Notice  of  the  arrival  of  the  goods  was  not  given  to,  nor 
were  the  goods  ever  received  by,  the  consignees.  The  stage,  in  its 
most  direct  route  to  the  post  office  from  the  stage  house,  passed  the 
store  of  the  consignees,  which  was  in  sight  of  the  stage  house,  and  the 
consignees  were  an  old-established  and  well-known  firm. 

The  defendants  offered  to  prove  that  it  was  the  uniform  usage  and 
course  of  business  of  this  line  of  stages  to  leave  goods  or  freight  trans- 
ported by  it,  directed  to  Troy,  at  the  stage  house  there,  and  not  to 
deliver  the  same  at  the  residence  or  place  of  business  of  the  consignee ; 
that  the  usage  prevailed  in  the  whole  course  of  the  line,  to  leave 
goods  or  freight  at  the  usual  stopping  places  of  the  stage  in  the  towns 
to  which  the  goods  were  directed,  to  be  delivered  to  the  consignees 
when  called  for,  and  not  to  make  a  delivery  of  the  goods  at  the  places 
of  business  of  the  consignees ;  and  that  such  was  the  general  custom 
of  the  lines  of  stages  throughout  the  state  and  country.  This  evidence 
was  objected  to  and  rejected  by  the  presiding  judge.  The  jury  found 
a  verdict  for  the  plaintiff  for  the  value  of  the  combs.  The  defendants 
moved  for  a  new  trial. 

CowEN,  J.^    The  offer  of  the  defendants  presupposed,  what  is  now 

1  Parts  of  the  opinion  are  omitted. 


136  THE  carrier's  undertaking.  (Part  2 

conceded,  and  is  indeed  extremely  well  settled,  that  prima  facie  the 
carrier  is  under  an  obligation  to  deliver  the  goods  to  the  consignee 
personally.-  *  *  *  jj^  Barnes  v.  Foley,  5  Burr.  2711,  the  question 
was  whether  it  was  the  duty  of  the  postmaster  at  Bath  to  deliver  let- 
ters to  the  inhabitants  at  their  houses.  Proof  of  usage  was  resorted 
to,  and  Mr.  Justice  Aston  said:  "The  limits  of  the  delivery  are  to  be 
determined  by  the  usage  of  the  place."  [5  Burr.]  2?  14.  And  in  Rush- 
forth  V.  Hadfield  and  Others,  7  East,  224.  all  the  court  agreed  in  the 
propriety  of  receiving  such  evidence  to  enlarge  the  rights  of  carriers. 
The  defendants  claimed  a  lien  on  the  goods,  not  only  for  the  price  of 
carrying  them  in  particular,  but  for  a  general  balance  due  to  them  for 
previous  carriage.  The  law  denies  to  the  carriers  a  claim  for  a  gen- 
eral balance;  but  a  long  train  of  evidence  was  received  to  show  that 
custom  and  the  course  of  trade  among  a  particular  sort  of  carriers  had 
overcome  the  law.  The  jury  found  against  the  defendants;  but  the 
evidence  was  so  imposing  that  they  moved  for  a  new  trial,  as  for  a 
finding  against  the  weight  of  evidence;  and  the  case  details  all  the 
proofs.  The  judges  proceeded  to  a  full  examination  of  them,  and  a 
new  trial  was  denied;  but  the  case  shows,  and  all  the  judges  concur  in 
declaring,  the  principles  on  which  such  evidence  is  to  be  received.  The 
cause  was  tried  before  Chambre,  J.,  who  put  it  to  the  jury  whether  the 
usage  were  so  general  as  to  warrant  them  in  presuming  that  the  par- 
ties who  delivered  the  goods  to  be  carried  knew  it,  and  understood 
that  they  were  contracting  with  the  carriers  in  conformity  to  it ;  if 
not,  the  general  rule  of  law  would  entitle  the  plaintiffs  to  a  verdict. 
All  the  judges  concurred  that  a  custom  of  this  kind,  which  is,  quoad 
hoc,  to  supersede  the  general  law  of  the  land,  should  be  clearly  proved, 
and  the  interested  encroachments  of  persons  engaged  in  a  particular 
trade  watched  with  great  jealousy.  None  of  them  disapproved  the 
qualifications  under  which  the  case  went  to  the  jury;  and  Lord  Ellen- 
borough,  C.  J.  and  Grose,  J.,  put  it  on  the  ground  of  a  usage  so  gen- 
eral, and  so  uniformly  acquiesced  in  for  length  of  time,  that  the  jury 
would  feel  themselves  constrained  to  say  it  entered  into  the  minds  of 
the  parties,  and  made  a  part  of  the  contract. 

But  all  this  has  nothing  to  do  with  the  abstract  question  of  compe- 
tency. Usage,  when  it  goes  to  change  the  law,  always  comes  in  sub- 
ject to  the  principles  declared  in  that  case;  yet  if  counsel  propose  to 
prove  such  a  usage,  and  think  they  can  establish  it,  I  am  aware  of  no 
rule  which  forbids  the  attempt.  *  *  *  it  would  be  too  much  to 
say  that  one  delivering  goods  to  a  carrier  by  stage  may  not  expressly, 
or,  which  is  the  same  thing,  if  he  knows  the  usage  of  the  stages  to  be 

2  In  Hyde  v.  Navigation  Co.,  5  T.  R.  389  (1793),  Grose,  J.,  said:  "In  gen- 
eral, the  carrier  appoints  a  porter  wlio  provides  a  cart  for  the  purpose  of 
delivering  the  goods;  but  it  would  be  open  to  an  infinity  of  frauds,  if  the 
carrier  could  discharge  himself  of  his  responsibility  by  delivering  them  to  a 
common  porter,  a  person  of  no  substance,  a  beggar,  of  whose  name  the  owner 
of  the  goods  never  heard,  and  against  Avhom,  in  the  event  of  the  goods  being 
lost,  there  could  be  no  substantial  remedy." 


Ch.  3)  THE   COMPLETION    OF  THE   CARRIER'S  UNDERTAKING.  137 

SO,  impliedly  consent  to  a  delivery  at  the  stopping  place,  instead  of  his 
consignee's  place  of  business.  In  Hyde  v.  Trent  &  Mersey  Navigation 
Company  [5  T.  R.  389],  Lord  Kenyon,  C.  J.,  went  into  a  very  elabor- 
ate argument  to  prove  that  stagemen  and  other  carriers  had  this  right 
by  the  general  law.  It  would,  after  that,  be  arrogant  to  condemn  the 
conventional  right  as  illegal,  or  contrary  to  sound  policy.  I  say  con- 
ventional, because  I  agree  that  these  cases  must  be  limited  by  the  rule 
of  Rushford  v.  Hadfield.     *     *     * 

In  Golden  v.  Manning,  2  Bl.  R.  916,  s.  c.  3  Wilson,  425,  433  (and 
see  Storr  v.  Crowley,  1  McClel.  &  Young,  129),  Gould,  J.,  said  he 
thought  that  all  carriers  are  bound  to  give  notice  of  the  arrival  of 
goods  to  the  persons  to  whom  they  are  consigned,  whether  bound  to 
deliver  or  not.  Prima  facie  this  must  be  so,  unless  the  notice  is  also 
dispensed  with  by  the  custom.  Gould,  J.,  was  speaking  of  this  very 
case  of  a  land  carrier ;  and  I  do  not  well  see  how  the  carrier  can  es- 
cape the  imputation  of  gross  negligence,  if  he  do  not,  at  least,  give 
notice,  in  order  that  the  consignee  may  send  for  the  goods.  How  is  he, 
otherwise,  to  find  out  the  fact  of  the  delivery?  Lord  Kenyon,  C.  J., 
in  the  opinion  before  cited,  thought  he  was  to  learn  it  by  a  letter  of 
advice  which  should  be  sent  by  the  consignor.  But  that  cannot  always 
state  the  place,  much  less  the  exact  time,  of  the  delivery  at  the  inn. 
His  Lordship  suggested  that  the  business  of  delivery  might  be  left 
to  the  innkeeper,  who  should  send  his  porter.  All  these  things  may, 
I  agree,  be  possibly  explained  by  the  custom  proposed  to  be  given  in 
evidence. 

I  do  not  understand  that  the  defendants  here  gave  any  notice  to  the 
consignees,  although  they  might  have  been  easily  traced  by  the  supers 
scription.  They  rested  everything  on  the  custom.  The  proposition, 
therefore,  struck  me  at  first  as  too  short.  I  thought  it  should  have 
come  up  to  a  custom  of  delivering  at  the  inn,  without  notice  to  the  con- 
signee. The  ofifer  may,  for  aught  I  know,  be  equivalent  to  that.  I 
should  think  it  essential,  either  to  establish  one  of  the  customs  as  pro- 
posed, and  follow  it  with  proof  of  actual  notice,  [or]  to  show  that  the 
custom  dispensed  with  notice.  Such  a  custom,  of  such  age,  uniform- 
ity, and  notoriety  that  a  jury  would  feel  clear  in  saying  it  was  known 
to  the  plaintiff,  I  think  w^ould  be  admissible.  He  would  be  bound  by 
it,  the  same  as  if  he  had  directed  a  delivery  at  the  inn.  And  on  the 
offer  made  and  overruled,  I  therefore  think  there  should  be  a  new  trial, 
the  costs  to  abide  the  event.^ 

8  "The  contract  of  the  defendants  with  the  plaintiffs  was  that  they  would 
carry  the  packages  in  question  from  Milwaukee  to  Madison,  and  deliver  them 
to  the  consignee  [the  State  Bank]  at  the  proper  time  and  at  the  proper  place, 
without  loss  or  failure,  except  by  the  act  of  God  or  of  the  public  enemy;  the 
plaintiffs  at  the  same  time  undertaking  that  the  consignee,  or  some  proper 
person  on  his  behalf,  should  be  at  the  proper  place  at  the  proper  time  to  re- 
ceive the  packages,  or  in  default  of  wuich,  upon  due  notice,  the  liability  of 
the  defendants  as  such  carriers  should  cease.    It  is  not  denied  that  a  delivers^ 


138  THE  carrier's  undertaking.  (Part  2 

PACKARD  V.  EARLE. 
(Supreme  Judicial  Court  of  Massachusetts,  1S73.    113  Mass.  280.) 

Tort  against  the  defendants  as  common  carriers  for  the  loss  of  a 
trunk  and  its  contents,  intrusted  to  them  to  be  carried  from  Provi- 
dence, Rhode  Island,  to  West  Mansfield,  Massachusetts,  and  to  be 
there  delivered  to  the  plaintiff. 

At  the  trial  in  the  superior  court,  before  Pitman,  J.,  it  appeared 
that  the  defendants  were  express  carriers  over  the  line  of  the  Boston 
&  Providence  Railroad  from  Providence  to  Boston,  and  intermediate 
stations ;  that  the  trunk  was  delivered  to  them  at  their  office  in  Provi- 
dence, on  Saturday,  March  2,  1872,  to  be  carried  by  them  as  express- 
men to  the  plaintiff  at  West  Mansfield,  a  station  on  the  railroad ;  that 
it  was  marked  "Henry  M.  Packard,  West  Mansfield" ;  that  no  special 
directions  as  to  the  delivery  were  given ;  that  the  plaintiff  did  business 
in  Wrentham,  during  the  week,  and  was  accustomed  to  spend  Sun- 
days at  his  father's  house,  about  one-half  of  a  mile  from  the  West 
Mansfield  station ;  that  the  Boston  &  Providence  Railroad  Company 
had  had  a  depot  at  West  Mansfield  for  about  20  years,  where  some  of 
their  trains  had  stopped  for  receiving  and  leaving  passengers  and  mer- 
chandise ;  that  the  defendants  and  other  express  carriers  on  the  line 
of  the  railroad  had  been  accustomed  to  deliver  and  receive  at  that  sta- 
tion, parcels,  carried  and  to  be  carried  by  them,  employing  the  station 
agent  and  switchtender  as  their  agents ;  that  the  amount  of  express 
business  there  was  very  small ;  that  no  messenger  had  ever  been  em- 
ployed there  by  any  express  carriers  for  the  delivery  of  goods;  that 
it  had  been  the  uniform  course  of  business  of  all  express  carriers  to  de- 
liver all  goods  and  parcels  destined  for  that  place  to  the  station  agent, 
who  kept  them  in  the  baggage-room,  notified  the  consignees  of  their 
arrival,  and  delivered  them  when  called  for  at  the  station.     *     *     * 

Endicott,  J.*  It  was  the  duty  of  the  defendants,  as  common  car- 
riers of  parcels,  to  deliver  the  trunk  to  the  plaintiff  personally  or  at 
his  residence  at  West  Mansfield,  and  until  such  delivery  their  liability 

or  tender  of  the  packages  at  5  o'clock  p.  m.  would  have  been  good  in  case  of 
a  merchant,  hotel  keeper,  or  grocer,  because  that  is  an  hour  at  which  all 
ordinary  business  men  in  Madison  are  at  their  places  of  business.  •  ♦  *  It 
was,  therefore,  a  fit  matter  of  inquiry  for  the  jury  to  ascertain  by  proof  what 
was  a  proper  time,  under  all  the  circiunstances,  to  deliver  the  packages.  And 
we  think  this  matter  was  properly  submitted  to  the  jury."  Smith,  J.,  in  Mar- 
shall V.  Am.  Exp.  Co.,  7  Wis.  1,  24,  73  Am.  Dec.  381  (1858). 

"I  do  not  think  it  ♦  *  *  necessary  to  form  an  opinion  on  the  question 
whether  a  carrier  is  bound  to  bring  goods  for  delivery  more  than  once.  My 
impression,  however,  is  strongly  in  favor  of  Mr.  Campbell's  argument  on  that 
point.  It  appears  to  me  to  be  sufficiently  proved  by  the  cases  as  a  genei-al  rule 
that  a  carrier,  having  once  tendered,  has  discharged  himself  of  his  obliga- 
tion ;  t)ecause,  otherwise,  where  is  his  liability  to  cease?"  Alexander,  C.  B., 
in  Storr  v.  Crowley,  MeCleland  &  Y.  129,  135  (1825). 

*  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


Ch.   3)  THE   COMPLETION    OF   THE   CARRIER'S   UNDERTAKING.  139 

as  carriers  continued.  This  liability  they  undertook  to  limit  by  proof 
of  a  usag-e  in  their  business  to  leave  packages  sent  to  West  Mansfield 
at  the  station,  with  notice  to  the  consignee  as  a  substitute  for  personal 
delivery.  This  was  not  a  general  usage  of  such  a  character,  that  a 
presumption  of  knowledge  arises  by  mere  force  of  its  existence,  and 
which  enters  into  and  becomes  part  of  the  agreement  of  the  parties. 
It  was  a  particular  usage,  local  in  its  application  and  character,  and 
confined  to  this  station,  and,  in  order  to  bind  the  plaintiff,  it  must  be 
proved  that  he  knew  it  when  he  made  the  contract  with  the  defendants 
to  carry  the  trunk.  The  instructions  on  this  point  were  sufficiently 
favorable  to  the  defendants.  Stevens  v.  Reeves,  9  Pick.  198;  Berk- 
shire Woolen  Co.  v.  Proctor,  7  Cush.  417.  *  *  * 
Exceptions  overruled.^ 


RICHARDSON  v.  GODDARD. 
(Supreme  Court  of  the  United  States.  1859.    23  How.  28,  IG  L.  Ed.  412.) 

Grier,  J.®  The  bark  "Tangier,  a  foreign  vessel  in  the  port  of  Bos- 
ton," is  charged  in  the  libel  with  a  failure  to  deliver  certain  bales  of 
cotton,  according  to  her  contract  of  affreightment.  The  answer  admits 
the  contract,  and  alleges  a  full  compliance  with  it,  by  a  delivery  of  the 
cargo  on  the  wharf,  and  that  after  such  delivery,  a  part  of  the  cargo 
was  consumed  by  fire,  before  it  was  removed  by  the  consignees. 

The  libelants  amended  their  libel,  admitting  the  receipt  of  163  bales, 
and  setting  forth,  as  a  reason  for  not  receiving  and  taking  away  from 
the  wharf  that  portion  of  the  cargo  which  was  unladen  on  Thursday, 
"that,  by  the  appointment  of  the  Governor  of  Massachusetts,  that  day 
was  kept  and  regarded  by  the  citizens  as  'a.  day  of  fasting,  humiliation, 
and  prayer,'  and  that  from  time  immemorial  it  has  been  the  usage  and 
custom  to  abstain  from  all  secular  work  on  that  day,"  and,  consequent- 
ly, that  the  libelants  were  not  bound  to  receive  the  cargo  on  that  day, 
and  that  such  a  delivery,  without  their  consent  or  agreement,  is  not 
a  delivery  or  offer  to  deliver  in  compliance  with  the  terms  of  the  bill 
of  lading.     *     *     * 

The  bark  Tangier  arrived  in  the  port  of  Boston  on  the  8th  of  April, 
with  a  cargo  of  cotton,  intending  to  discharge  at  Battery  Wharf ;  but 
at  the  request  of  the  consignees  and  for  their  convenience,  she  "hauled 
up"  at  Lewis'  Wharf.  She  commenced  the  discharge  of  her  cargo  on 
Monday,  the  7th,  and  on  the  same  day  the  master  gave  notice  to  the 
consignees  of  his  readiness  to  deliver  the  goods.  The  unlading  was 
commenced  in  the  afternoon,  and  was  continued  through  the  forenoon 
of  Tuesday,  when,  the  cotton  not  being  removed,  the  wharf  became 
so  full  that  the  work  was  suspended.     Notice  was  again  given  to  the 

6  Compare  Southern  Ex.  Co.  v.  Holland,  109  Ala.  362,  19  South.  66  (1895). 
«  Parts  of  the  opinion  are  omitted. 


140  THE    carrier's   UNDERTAKING.  (Part    2 

consignees ;  and,  they  still  neglecting  to  remove  their  cotton,  a  third 
notice  was  added  on  Wednesday  morning.  On  the  afternoon  of  that 
day,  all  the  cotton  which  had  been  unladen  on  Monday  and  Tuesday 
was  removed,  excepting  325  bales,  which  remained  on  the  wharf  over- 
night. On  Thursday  morning  the  wharf  was  so  far  cleared  that  the 
unlading  was  completed  by  1  o'clock  p.  m.  On  that  day  the  libelants 
took  away  about  5  bales,  and  postponed  taking  the  rest  till  the  next 
day,  giving  as  a  reason  that  it  was  fast  day.  About  3  o'clock  of  this 
day  the  cotton  remaining  on  the  wharf  was  consumed  or  damaged  by 
an  accidental  fire. 

The  contract  of  the  carrier,  in  this  case,  is  "to  deliver,  in  like  good 
order  and  condition,  at  the  port  of  Boston,  unto  Goddard  and  Pritch- 
ard." 

What  constitutes  a  good  delivery  to  satisfy  the  exigency  of  such  a 
contract  will  depend  on  the  known  and  established  usages  of  the  par- 
ticular trade,  and  the  well-known  usages  of  the  port  in  which  the  de- 
livery is  to  be  made. 

A  carrier  by  wagon  may  be  bound  to  deliver  his  freight  at  the  ware- 
house of  the  consignee ;  carriers  by  railroad  and  canal  usually  deliver 
at  warehouses  belonging  to  themselves  or  others.  Where  the  con- 
tract is  to  carry  by  sea,  from  port  to  port,  an  actual  or  manual  tradi- 
tion of  the  goods"  into  the  possession  of  the  consignee,  or  at  his  ware- 
house, is  not  required  in  order  to  discharge  the  carrier  from  his  lia- 
bility as  such. 

There  is  no  allegation  of  a  particular  custom  as  to  the  mode  and 
place  of  delivery,  peculiar  to  the  city  of  Boston,  which  the  carrier  has 
not  complied  with.  The  general  usages  of  the  commercial  and  mari- 
time law,  as  settled  by  judicial  decisions,  must  therefore  be  applied  to 
the  case.  By  these,  it  is  well  settled  that  the  carrier  by  water  shall 
carry  from  port  to  port,  or  from  wharf  to  wharf.  He  is  not  bound  to 
deliver  at  the  warehouse  of  the  consignee ;  it  is  the  duty  of  the  con- 
signee to  receive  the  goods  out  of  the  ship  or  on  the  wharf.  But  to 
constitute  a  valid  delivery  on  the  wharf,  the  carrier  should  give  due 
and  reasonable  notice  to  the  consignee,  so  as  to  afford  him  a  fair  op- 
portunity of  providing  suitable  means  to  remove  the  goods,  or  put 
them  under  proper  care  and  custody.^ 

7  "It  does  not  follow,  however,  that  a  delivery  of  cargo  if?  necessarily  a 
good  delivery  be«iuse  within  the  legal  limits  of  the  port.  Such  is  not  the 
meaning  or  intention  of  the  bill  of  lading.  No  one  would  seriously  contend 
that  under  a  bill  of  lading  like  this  goods  consigned  to  a  merchant  in  New 
York  City  could  be  lawfully  delivered  at  Spuyten  Duyvil,  some  13  miles  above 
the  Battery,  at  the  mere  option  of  the  captain,  because  Spuyten  Duyvil  is 
within  the  geographical  limits  of  the  city  and  port  of  New  York.  ♦  *  *  a 
bill  of  lading  is  a  commercial  document,  to  be  inten^reted  according  to  the 
usages  of  commerce.  *  *  *  Consignees  of  goods  at  a  designated  port  have 
a  right  to  expect  a  delivery  of  their  goods  according  to  the  established  cus- 
tom and  usage  of  the  port,  and  in  that  part  of  the  port  customarily  used  for 
the  discharge  of  such  goods ;   and  the  vessel  is  bound,  and  has  a  right,  to  make 


'Ch.   3)  THE   COMPLETION    OF  THE   CARRIER'S    UNDERTAKING.  143 

Such  a  delivery,  to  be  effectual,  should  not  only  be  at  the  proper 
place,  which  is  usually  the  wharf,  but  at  a  proper  time.  A  carrier  who 
would  deposit  goods  on  a  wharf  at  night  or  on  Sunday,  and  abandon 
them  without  a  proper  custodian,  before  the  consignee  had  proper  time 
and  opportunity  to  take  them  into  his  possession  and  care,  would  not 
fulfill  the  obligation  of  his  contract.  When  goods  are  not  accepted  by 
the  consignee,  the  carrier  should  put  them  in  a  place  of  safety ;  and 
when  he  has  so  done  he  is  no  longer  liable  on  his  contract  of  affreight- 
ment. 

Applying  these  principles  to  the  facts  of  this  case,  it  is  clear  that 
(saving  the  question  as  to  the  day)  the  respondents  are  not  liable  on 
their  contract  of  affreightment  for  the  loss  of  the  goods  in  question. 
They  delivered  the  goods  at  the  place  chosen  by  the  consignees,  and 
where  they  agreed  to  receive  them,  and  did  receive  a  large  portion  of 
them,  after  full  and  fair  notice.  The»goods  were  deposited  for  the  con- 
signees in  proper  order  and  condition,  at  mid-day,  on  a  week  day,  in 
•good  weather.  This  undoubtedly  constituted  a  good  delivery ;  and  the 
■carriers  are  clearly  not  liable  on  their  contract  of  affreightment,  un- 
less, by  reason  of  the  fact  next  to  be  noticed,  they  were  restrained 
from  unlading  their  vessel  and  tendering  delivery  on  that  day. 

[The  learned  judge  then  considered  whether  the  discharge  of  cargo 
from  a  foreign  vessel  on  fast  day  was  in  conflict  with  the  law  or  usage 
of  the  port  of  Boston,  and  held  that  it  was  not  in  conflict.] 

On  the  whole,  we  are  of  opinion  that  the  bark  Tangier  has  made 
good  delivery  of  her  cargo  to  the  consignees  according  to  the  exigency 
■of  her  bill  of  lading,  and  that  the  decree  of  the  Circuit  Court  should 
be  reversed,  and  the  libel  dismissed,  with  costs. 

delivery  accordingly."  Brown,  J.,  in  Devato  v.  823  Barrels  of  Plumbago  (D. 
C.)  20  Fed.  510,  515  (1884).  And  see  Cargo  ex  Argos,  L.  R.  5  P.  C.  134,  160 
(1873). 

"In  the  absence  of  evidence  of  nsage,  I  lay  down  the  rule  of  law,  as  I 
did  in  another  case,  that  where  there  are  two  or  more  wharves  in  the  port 
equally  convenient  to  the  carrier,  he  is  bound  to  deliver  at  that  most  con- 
venient to  the  shipper,  at  least  if  he  be  duly  and  seasonably  notified  of  such 
preference."  Lowell,  J.,  in  The  Boston,  1  Low.  464.  Fed.  Cas.  No.  1,671  (1870). 
See,  also,  Pvichmond  v.  Union  Co.,  87  N.  Y.  240  (1881) ;  Constable  v.  National 
S.  S.  Co.,  1.54  U.  S.  51,  14  Sup.  Ct.  1062,  38  L.  Ed.  903  (1894);  Hewlett  v. 
Burrell,  105  Fed.  SO,  44  C.  C.  A.  362  (1900). 

"Delivery  upon  the  wharf,  in  case  of  goods  transported  by  ships,  is  sufficient 
under  our  law,  if  due  notice  be  given  to  the  consignees,  and  the  different  con- 
signments be  properly  separated  so  as  to  be  open  to  inspection  and  conveniently 
accessible  to  the  owners.  The  Eddy,  5  Wall.  (72  U.  S.)  405,  18  L.  Ed.  486; 
The  Santee,  Fed.  Cas.  No.  12..32S.  I  am  clear  in  the  opinion  that  there  was  no 
delivery  of'  the  goods  in  this  case,  under  the  rules  of  law  just  cited.  The 
goods  of  the  various  consignees  were  piled  together  in  one  bulk  upon  the 
wharf,  under  tarpaulins,  during  a  rainy  and  stormy  day.  where  they  could  not 
be  fairly  said  to  be  open  to  the  inspection  of  the  consignee,  and  a  fair  oppor- 
tunity afforded  him  to  remove  his  goods.  An  actual  inspection  of  the  goods 
by  the  consignee,  and  their  removal  by  him,  are  not  necessary  to  a  delivery  of 
the  goods  but  there  can  be  no  delivery  unless  the  consignee  has  the  oppor- 
tunity to  inspect  and  cany  away."  Woods,  J.,  in  Dibble  v.  Morgan,  1  Woods, 
406  Fed   Cas   No.  3,881  (1873).    But  see,  as  to  the  sufficiency  of  deposit  upon 


142  THE  carrier's  undertaking.  (Part  2 

JARRETT  V.  GREAT  NORTHERN  RY.  CO. 
(Supreme  Court  of  Minnesota,  180S.    74  Minn.  477,  77  N.  W.  304.) 

Canty,  J.®  Plaintiff  appeals  from  an  order  sustaining  a  demurrer 
to  the  complaint  on  the  ground  that  it  does  not  state  a  cause  of  action. 

It  is  alleged  in  the  first  cause  of  action  that  defendant  is  a  common 
carrier,  and  that,  "for  a  valuable  consideration,"  it  agreed  to  safely 
carry  from  Donnelly,  INIinn.,  to  Minneapolis,  Minn.,  certain  goods, 
and  deliver  the  same,  at  the  latter  place,  to  John  ^McGregor  &  Co. ; 
that  the  goods  were  the  property  of  plaintiff,  and  were  consigned  by 
him  to  John  AIcGregor  &  Co.,  as  commission  merchants,  to  sell  the 
same  for  plaintiff ;  and  that  he  then  delivered  the  goods  to  defendant 
at  Donnelly,  pursuant  to  said  agreement  with  it.  It  is  further  alleged 
"that  the  defendant  did  not  safely  carry  and  deliver  said  goods,  within 
a  reasonable  time,  or  at  all,  to  said  John  AIcGregor  &  Co.,  at  said  city 
of  Minneapolis,  or  at  any  other  place,  or  at  all,  pursuant  to  said  agree- 
ment, and  did  not  deliver  the  same  to  plaintiff,  or  any  other  person, 
pursuant  to  plaintiff's  order,  at  said  city  of  Minneapolis,  or  at  all; 
whereby  said  hay  became  wholly  lost  to  this  plaintiff,  to  his  damage  in 
the  sum  of  $115.51,  no  part  of  which  has  ever  been  paid."  The  sec- 
ond cause  of  action  is  similar  in  form,  and  need  not  be  noticed  further. 
*     *     * 

3.  The  complaint  does  not  allege  that  plaintiff  demanded  the  goods 
before  bringing  this  action.  It  does  not  appear  that  it  is  not  in  the 
power  of  the  defendant  to  deliver  the  goods,  and,  for  these  rea- 
sons, the  complaint  does  not,  in  our  opinion,  state  a  cause  of  action. 
It  is  immaterial  whether  an  action  of  trover  is  brought  or  one  on  con- 
tract. In  either  case,  the  action  must  be  founded  on  the  same  breach 
of  duty  by  defendant.  That  breach  of  duty  is  the  failure  to  deliver 
the  goods  when  demanded.  It  is  not  the  customary  duty  of  a  railroad 
company  to  tender  the  goods  to  the  consignee,  but  the  goods  are 
kept  at  the  depot  or  warehouse  until  the  consignee  calls  for  them.* 
And,  before  an  action  can  be  maintained  against  such  a  common  car- 
rier, a  demand  for  the  goods  must  be  made.  Railroad  Co.  v.  Bivens,  13 
Ind.  263;  Railroad  Co.  v.  Sullivan,  14  Ga.  277;  Bird  v.  Railroad  Co., 
72  Ga.  655 ;  Gregg  v.  Railroad  Co.,  147  111.  550,  35  N.  E.  343,  37 
Am.  St.  Rep.  238 :  4  Elliott,  R.  R.  §  1526 ;  5  Am.  &  Eng.  Enc.  Law 
(2d  Ed.)  230.  The  allegation  in  the  complaint  that  "the  defendant 
did  not  safely  c^rry  and  deliver  said  goods"  is  a  sort  of  a  negative 

tbe  wharf,  The  Titania.  131  Fed.  229.  6.5  C.  C.  A.  215  (1904) ;  Rosenstein  v. 
Vogemann,  184  N.  Y.  325,  77  N.  E.  625  (1906) ;  Carver,  Carriage  by  Sea,  §§ 
471,  474.    As  to  the  necessity  of  notice.  Carver,  Carriage  by  Sea,  §  465. 

8  Part  of  the  opinion  is  omitted. 

9  For  a  statement  of  the  reasons  for  this  rule,  see  Shaw,  C.  J.,  in  Norway 
Plains  Co.  v.  B.  &  M.  R.  Co.,  post,   piJt  501-502. 


Ch.   3)  THE   COMPLETION    OF   THE   CARRIER'S    UNDERTAKING.  143 

pregnanf,  and  does  not  amount  to  an  allegation  that  the  goods  were 
injured  or  destroyed  in  transit,  or  that  there  was  a  failure  to  deliver 
them  on  demand. 

The  order  appealed  from  is  affirmed.^" 


LOUISVILLE,  N.  A.  &  C.  RY.  CO.  v.  HEILPRIN. 

(Appellate  Court  of  Illinois,  First  District,  1900.    do  111.  App.  402.) 

This  suit  was  begun  before  a  justice  of  the  peace  by  appellee  to  re- 
cover from  appellant,  a  common  carrier,  its  damages  by  reason  of 
failure  of  appellant  to  deliver  certain  goods  consigned  to  it  by  appel- 
lee for  shipment.  The  goods  were  not  lost,  but  were  delayed  in  transit, 
and,  when  finally  at  destination,  were  refused  by  the  consignee  because 
of  the  delay.  Appellee,  the  consignor,  never  made  demand  for  return 
of  the  goods  to  it,  and  the  goods  still  remain  in  the  depot  of  appellant 
at  the  place  of  destination.     *     *     * 

Sears,  J.^^  *  *  *  There  was  no  obligation  to  return  to  the 
consignor  unless  and  until  the  carrier  was  directed  so  to  do.  and  a  fail- 
ure to  return  was  not  a  conversion  of  the  goods.  Hutchinson  on  Car- 
riers (2d  Ed.)   §  392. 

Until  directed  by  the  consignor  to  do  otherwise,  it  was  the  duty  of 
appellant,  the  carrier,  to  deliver  to  the  consignee,  and  upon  a  refusal 
by  the  consignee  to  accept,  to  hold  the  goods  for  further  direction  by 

10  Duty  of  Railroad  as  to  Notifying  Consignee.— "It  was  argued  in  the 
present  case  that  the  railroad  company  are  responsible  as  common  carriers 
of  goods  until  they  have  given  notice  to  consignees  of  the  arrival  of  goods. 
The  court  are  strongly  inclined  to  the  opinion  that  in  regard  to  the  trans- 
portation of  goods  by  railroad,  as  the  business  is  generally  conducted  in  this 
country,  this  rule  does  not  apply.  The  immediate  and  safe  storage  of  the 
goods  on  arrival,  in  warehouses  provided  by  the  railroad  company,  and  with- 
out additional  expense,  seems  to  be  a  substitute  better  adapted  to  the  con- 
venience of  both  parties.  The  arrivals  of  goods  at  the  larger  places  to 
which  goods  are  thus  sent  are  so  numerous,  frequent,  and  various  in  kind  that 
it  would  be  nearly  impossible  to  send  special  notice  to  each  consignee  of  each 
parcel  of  goods  or  single  article  forwarded  by  the  trains."  Shaw,  C.  J.,  in 
Norway  Plains  Co.  v.  B.  &  M.  R.  Co.,  1  Gray  (Mass.)  263,  61  Am.  Dec.  423 
(1854).  post,  p.  503. 

"The  rule  as  to  the  liability  of  carriers  under  the  facts  stated  is  well  es- 
tablished by  the  law  merchant,  and  the  authorities  are  numerous  which  sus- 
tain the  position  that  the  carrier  is  bound  to  pay  for  the  loss  of  the  goods 
destroyed.  It  is  his  dutv  not  only  to  transport  the  goods,  but  he  has  not  per- 
formed his  entire  contract  as  a  common  carrier  until  he  has  delivered  the 
goods,  or  offered  to  deliver  them  to  the  consignee,  or  has  done  what  is  equiva- 
fent,"by  giving  to  the  consignee,  if  he  can  be  found,  due  notice  after  their  ar- 
rival and  by  furnishing  him  a  reasonable  time  thereafter  to  take  charge  of 
or  to  remove  the  same."  Miller,  J.,  in  Faulkner  v.  Hart,  82  N.  Y.  413,  37 
Am.  Rep.  574  (1880). 

For  the  rule  on  this  subject  in  the  various  states,  see  Carriers,  9  Cent.  Dig. 
§  316;  4  Dec.  Dig.  §  So. 

11  Parts  of  the  statement  of  facts  and  opinion  are  omitted. 


14:4  THE   CAIiUIEU's   UNDERTAKING.  (Part  2 

the  consignor.    This  the  appellant  did,  and  while  it  may  be  mulcted  in 
damages  for  any  unreasonable  delay  in  shipment,  it  cannot,  under 
these  facts,  be  held  to  respond  for  the  full  value  of  the  goods. 
The  judgment  is  reversed  and  the  cause  is  remanded. ^- 


HARDY  V.  AMERICAN  EXPRESS  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1902.    182  Mass.  .328,  G5  N.  E.  375, 

59  L.  R.  A.  731.) 

Holmes,  C.  J.^^  This  is  an  action  for  money  had  and  received  to 
recover  a  sum  paid  to  the  defendant  for  fifty  sets  of  Balzac's  works 
and  charges  on  the  same,  sent  to  the  plaintiffs  by  Caiman,  Levy  &  Co., 
from  Paris.  The  goods  were  to  be  delivered  to  the  plaintiffs  at  Boston 
by  the  defendant  carrier,  "C.  O.  D.,"  that  is  to  say,  on  the  plaintiffs' 
paying  for  the  goods  and  charges.^*  The  goods  arrived  in  Boston, 
and  the  defendant  was  notified  by  the  Cunard  Company  on  November 
28,  1898,  that  they  showed  signs  of  wet  damage.     The  next  day  the 

12  In  Lesinsky  v.  Great  Western  Dispatch,  10  Mo.  App.  134  (1881),  the  de- 
feudant  carrier,  having  received  goods  for  carriage  to  St.  Louis  and  delivery  to 
a  connecting  carrier  for  further  transportation,  stored  the  goods  in  its  ware- 
house at  St.  Louis  on  the  connecting  carrier's  refusal  to  receive  them,  without 
notice  to  the  shipper  or  to  the  ultimate  consignee.  Thompson,  J.,  said:  "It 
is  familiar  law  that  the  liability  of  a  carrier  does  not  cease  till  he  has  de- 
livered the  goods  to  the  consignee,  or  made  a  reasonable  attempt  to  deliver 
them.  "\^Taere  his  own  route  extends  to  the  place  of  ultimate  destination  of 
the  goods,  and  the  consignee  refuses  to  receive  the  goods,  he  ordinarily  dis- 
charges himself  from  liability  by  storing  the  goods  safely  without  giving  notice 
to  the  consignor,  although  there  are  some  cases  which  hold  that  such  notice 
must  be  given.  The  reason  why  such  notice  is  not  ordinarily  required  seems 
to  be  that  the  consignee  is  presumptively  the  owner  of  the  goods,  the  consignor 
the  agent  of  the  owner  for  the  purpose  of  shipment,  and  the  carrier,  in  like 
manner,  the  agent  of  the  owner.  Hutch,  on  Car.  §  108 ;  Briggs  v.  Railroad  Co., 
6  Allen  (ilass.)  246,  83  Am.  Dec.  G2G.  It  is,  therefore,  a  case  where  an  agent 
tenders  performance  of  his  contract  to  his  principal,  and  the  latter  refuses,  in 
which  case  there  seems  to  be  no  good  reason  why  the  agent  should  be  held 
bound  to  notify  a  third  person  of  that  fact.  But  the  reason  of  this  rule  does 
not  apply  to  the  case  where  the  carrier  undertakes  to  transport  goods  over 
his  own  line  and  deliver  them  to  a  connecting  carrier  to  complete  the  transit. 
Here,  the  goods  having  passed  wholly  out  of  sight  of  both  the  consignor  and 
the  consignee,  if,  from  any  circumstance,  delivery  to  the  succeeding  carrier 
becomes  impossible,  the  former  carrier  is  under  an  obvious  duty  to  notify 
either  the  consignor  or  the  consignee,  unless  it  is  impracticable  to  do  so." 

See  9  Cent.  Dig.  Carriers,  §§  329,  333. 

13  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 

14  "In  other  words,  the  direction  embodied,  in  the  letters  C.  O.  D.,  placed  upon 
a  package  committed  to  a  carrier,  is  an  order  to  the  carrier  to  collect  the  money 
for  the  package  at  the  time  of  its  delivery.  It  is  a  part  of  the  undertaking  of 
the  carrier  with  the  consignor,  a  violation  of  which  imposes  upon  the  carrier 
the  obligation  to  pay  the  price  of  the  article  delivered,  to  the  consignor." 
Green,  O.  J.,  in  Commonwealth  v.  Fleming,  130  Pa.  138,  18  Atl.  622,  5  L.  R. 
A.  470,  17  Am.  St.  Rep.  763  (1889).  Compare  Chicago,  etc.,  R.  Co.  v.  Merrill, 
48  111.  425  (1868). 


Ch.   3)  THE   COMPLETION    OF   THE   CARRIER'S    UNDERTAKING.  145 

defendant's  agent,  knowing  of  this  notice  but  saying  nothing  about  it, 
called  on  the  plaintiffs,  presented  a  bill,  and  asked  for  a  check  for  the 
amount  in  controversy.  Earlier  on  the  same  day  the  plaintiffs  had 
been  notified  that  the  goods  were  landed  and  that  the  money  would  be 
needed  to  get  them  through  the  custom-house.  The  sum  was  paid  in 
ignorance  of  any  trouble.  The  goods  were  not  delivered  to  the  plain- 
tiffs until  December  1,  or  later.  On  December  5  or  6,  the  plaintiff 
Hardy  returned  from  abroad,  opened  the  cases  and  discovered  the 
damage  on  December  18  or  13,  and  on  December  19  wrote  to  the  de- 
fendant that  the  goods  were  ruined  and  could  not  be  used,  adding, 
"We  feel  justified  in  putting  in  a  claim  for  the  entire  shipment  and 
hold  the  goods  subject  to  your  inspection."  Meantime  the  defendant 
had  advised  its  Paris  office  by  mail  of  the  payment,  and  on  December 
16,  before  the  plaintiffs  made  their  claim,  the  Paris  office  had  paid 
Caiman,  Levy  &  Co.  After  discussions  and  delays  the  plaintiffs  wrote 
again  in  April,  intimating  that  they  had  paid  relying  on  the  defend- 
ant's saying  nothing  to  show  that  the  books  were  not  in  proper  condi- 
tion, and  pressing  for  settlement,  as  they  had  lost  the  use  of  their 
money  for  nearly  five  months.  Later,  the  defendant  disclaimed  lia- 
bility, and  this  suit  was  brought.  The  judge  directed  a  verdict  for  the 
defendant  and  the  plaintiffs  excepted.     *     *     * 

The  defendant  was  entitled  to  receive  its  charges  from  the  plaintiffs 
only  in  case  the  plaintiffs  accepted  delivery  of  the  goods.  The  defend- 
ant itself  contends  that  it  collected  the  price  of  the  goods,  which  was 
the  larger  part  of  the  sum  received,  as  the  agent  of  the  consignors. 
If  the  defendant  knew  facts  which  would  have  made  it  wrongful  in 
the  vendors  to  collect  the  money  without  disclosing  them,  it  could  not 
retain  the  money  against  a  seasonable  demand,  because  it  received  it 
only  in  the  vendors'  right.  The  right  to  retain  the  charges  would  fall 
with  the  right  to  retain  the  principal  sum.  The  evidence  is  less  com- 
plete than  it  might  be,  but  it  would  seem  that  these  goods  were  at  the 
consignors'  risk  and  were  not  to  be  delivered  until  they  reached  Bos- 
ton. Lane  v.  Chadwick,  146  Mass.  68,  15  N.  E.  121 ;  State  v.  O'Neil, 
58  Vt.  140,  158,  2  Atl.  586,  56  Am.  Rep.  557;  State  v.  Wingfield,  115 
Mo.  428,  437,  22  S.  W.  363,  37  Am.  St.  Rep.  406.  It  was  not  disputed 
that  the  plaintiffs  would  have  been  warranted  in  refusing  to  receive 
them,  had  they  known  that  they  were  spoiled.  See  Lyons  v.  Hill,  46  N. 
H.  49,  88  Am.  Dec.  189 ;  Murchie  v.  Cornell,  155  Mass.  60,  29  N.  E. 
207,  14  L.  R.  A.  492,  31  Am.  St.  Rep.  526.  The  defendant  had  notice 
of  signs  which  made  it  likely  that  the  goods  were  spoiled,  and  there- 
fore had  notice  of  the  fact  as  it  turned  out.  By  demanding  or  request- 
ing payment,  the  defendant  affirmed  by  implication  that  it  had  not 
notice  of  facts  which  exonerated  the  plaintiffs  from  receiving  the 
goods  or  paying  for  them,  because  it  was  receiving  payment  in  the 
right  of  the  consignors  who  would  have  been  bound  to  disclose  the 
facts.     See  Martin  v.  Morgan,  3  Moore,  635.     *     *     * 

^REEN  OaBK. — 10 


]46  THE  carrier's  UNDERTAKING.  (Part  2 

But  it  is  said  that  the  plaintiffs  should  have  given  prompt  notice,  and 
that  tliey  did  not  use  reasonable  diligence  in  doing  so.  We  assume 
that  they  were  bound  to  use  reasonable  diligence  in  that  respect,  al- 
though some  of  the  cases  seem  to  recognize  no  such  rule.  See,  e.  g., 
Larkin  v.  Hapgood,  56  Vt.  597.     *     *     * 

The  court,  however,  is  not  prepared  to  rule  upon  this  as  matter  of 
law,  but  is  of  opinion  that  it  is  a  question  upon  which  the  jury  ought 
to  pass.  If  the  jury  should  find  that  notice  was  given  within  a  reason- 
able time,  the  defendant  cannot  escape  on  the  mere  ground  that  it  has 
paid  over.  It  knowingly  has  received  the  money  without  right,  and 
therefore  is  under  a  personal  obligation  to  the  plaintiffs,  unless  and 
until  it  is  excused  by  conduct  on  their  part  which  estops  them  from 
setting  up  their  claim.  Snowdon  v.  Davis,  1  Taunt.  359 ;  Townson  v. 
Wilson,  1  Camp.  396 ;  Sharland  v.  Mildon,  5  Hare,  469 ;  Ex  parte  Ed- 
wards and  In  re  Chapman,  13  Q.  B.  Div.  7-17 ;  Moore  v.  Shields,  121 
Ind.  267,  272,  23  N.  E.  89. 

But  a  further  defense  is  pressed  with  force,  that  there  was  no  offer 
to  return  the  goods.  We  agree  with  the  defendant  that  the  plaintiffs 
were  not  excused  from  this  by  the  fact  that  the  defendant  was  not  the 
vendor.  It  represented  the  vendor  and  also  had  a  right  to  be  rein- 
stated in  its  own  lien.  We  agree  also  that  the  goods  were  not  so  ab- 
solutely worthless  as  to  excuse  the  plaintiffs  on  that  ground.  Morse 
V.  Brackett,  98  Mass.  205,  209;  Snow  v.  Alley,  144  Mass.  546,  551, 
11  N.  E.  764,  59  Am.  Rep.  119.  The  plaintiffs  said  they  were  worth 
five  or  six  dollars.  But  the  jury  might  find,  and  we  cannot  say  that 
they  would  not  be  justified  in  finding,  that  from  the  beginning  the 
plaintiffs  showed  that  they  were  willing  to  give  up  the  goods  if  they 
got  back  their  money,  and  that  the  defendant  indicated  plainly  enough 

to  excuse  them  from  a  tender  that  it  repudiated  liability  in  any  form. 
*     *     * 

Exceptions  sustained.^' 


McENTEE  V.  NEW  JERSEY  STEA^IBOAT  CO. 

(Court  of  Appeals  of  New  York,  ISTI.    45  N.  Y.  34,  G  Am.  Rep.  28.) 

The  action  was  brought  against  the  defendants  for  the  conversion 
of  chattels  claimed  by  the  plaintiff.  The  defendants,  as  common  car- 
riers between  Albany  and  New  York,  received  from  ]\Ir.  Guyer,  at 
Albany,  and  carried  to  New  York,  in  1868,  several  bundles  of  sash 
and  blinds  addressed  to  "McEntee,"  New  York.  After  these  arrived 
at  New  York,  the  plaintiff  claimed  them,  and  gave  evidence  tending 
to  prove  that  he  demanded  the  goods  and  tendered  the  charges,  and 
that  the  agents  of  the  defendants  refused  to  deliver  them.  The  de- 
fendants gave  evidence  somewhat  in  conflict  with  the  plaintiff's  state- 

16  See,  also,  Lyons  v.  Hill,  46  N.  H.  49,  88  Am.  Dec.  180  (1SG5). 


Ch.  3)  THE   COMPLETION    OF   THE   CARRIER'S    UNDERTAKING.  147 

ment.  *  *  *  fj-ie  judge  ruled  and  decided  that  the  only  question 
for  the  jury  was  whether  the  freight  money  was  tendered.  *  *  * 
A  verdict  was  rendered  at  the  Kings  circuit  in  favor  of  the  plaintiff 
for  the  value  of  the  property,  upon  which  judgment  was  entered  and 
affirmed  on  appeal  by  the  Supreme  Court,  and  from  the  latter  judg- 
ment the  defendants  have  appealed  to  this  court. 

Allen,  J.^®  The  defendants  were  charged  for  the  conversion  of 
the  goods  upon  evidence  of  a  demand  and  a  refusal  to  deliver  them. 
If  the  demand  was  by  the  person  entitled  to  receive  them,  and  the 
refusal  to  deliver  was  absolute  and  unqualified,  the  conversion  was 
sufficiently  proved,  for  such  refusal  is  ordinarily  conclusive  evidence 
of  a  conversion ;  but.  if  the  refusal  was  qualified,  the  question  was, 
whether  the  qualification  was  reasonable;  and  if  reasonable  and  made 
in  good  faith,  it  was  no  evidence  of  a  conversion.  Alexander  v.  Sou- 
they,  5  B.  &  Aid.  247;  Holbrook  v.  Wight,  2-i  Wend.  (N.  Y.)  169, 
35  Am.  Dec.  607 ;  Rogers  v.  Weir,  31  N.  Y.  463 ;  Mount  v.  Derick, 
5  Hill  (N.  Y.)  455.  If,  at  the  time  of  the  demand,  a  reasonable  excuse 
be  made  in  good  faith  for  the  nondelivery,  the  goods  being  evidently 
kept  with  a  view  to  deliver  them  to  the  true  owner,  there  is  no  con- 
version. 

This  action  is  not  upon  the  contract  of  the  carriers,  but  for  a  tor- 
tious conversion  of  the  property ;  but  the  rights  and  duties  of  the  de- 
fendants as  carriers,  are,  nevertheless,  involved. 

The  defendants  were  bailees  of  the  property,  under  an  obligation 
to  deliver  it  to  the  rightful  owner.  They  would  have  been  liable  had 
they  delivered  the  goods  to  a  wrong  person.  Common  carriers  deliver 
property  at  their  peril,  and  must  take  care  that  it  is  delivered  to  the 
right  person,  for  if  the  delivery  be  to  the  wrong  person,  either  by  an 
innocent  mistake  or  through  fraud  of  third  persons,  as  upon  a  forged 
order,  they  will  be  responsible,  and  the  wrongful  delivery  will  be  treat- 
ed as  a  conversion.  Hawkins  v.  Hoffman,  6  Hill  (N.  Y.)  586,  41  Am. 
Dec.  767;  Powell  v.  Myers,  26  Wend.  591;  Devereux  v.  Barclay,  3 
B.  &  Aid.  702 ;  Guillaume  v.  Hamburg  &  Am.  Packet  Co.,  42  N.  Y. 
212,  1  Am.  Rep.  512 ;  Duff  v.  Budd,  3  Brod.  &  Bing.  177.  The  duties 
of  carriers  may  be  varied  by  the  differing  circumstances  of  cases  as 
they  arise ;  but  it  is  their  duty  in  all  cases  to  be  diligent  in  their  efforts 
to  secure  a  delivery  of  the  property  to  the  person  entitled,  and  they 
will  be  protected  in  refusing  delivery  until  reasonable  evidence  is  fur- 
nished them  that  the  party  claiming  is  the  party  entitled,  so  long  as 
they  act  in  good  faith  and  solely  with  a  view  to  a  proper  delivery.^ ^ 
The  circumstances  of  this  case,  the  very  defective  address  of  the  par- 
cels, and  the  omission  of  the  plaintiff  to  produce  any  evidence  of  title 
to  the  property  or  identifying  him  as  the  consignee,  justified  the  de- 
fendants  in   exercising  caution  in  the   delivery,   and   it   should  have 

16  Parts  of  the  statement  of  facts  are  omitted. 

17  Ace.  Moore  v.  Bait.  &  O.  R.  Co.,  l(Xi  Va.  189.  48  S.  E.  887  (1904),  loss  of 
market  by  delay.    But  see  Allen  v.  Me.  Cent.  R.  Co.,  ante,  p.  123. 


14S  THE   carrier's   UNDERTAKING.  (Part  2 

been  submitted  to  the  jury  whether  the  refusal  was  qualified,  as 
alleged  by  the  defendants ;  and  if  so,  whether  the  qualification  was 
reasonable,  and  was  the  true  reason  for  not  delivering  the  goods.  The 
judge  also  erred  in  his  instructions  to  the  jury  as  to  the  duty  of  the 
defendants,  as  common  carriers,  in  the  delivery  of  goods.  They  may 
not  properly,  or  without  incurring  liability  to  the  true  owner,  deliver 
goods  to  any  person  who  calls  for  them,  other  than  the  rightful  owner. 
The  judgment  must  be  reversed  and  a  new  trial  granted,  costs  to 
abide  event.  All  the  judges  concurring,  judgment  reversed  and  new 
trial  ordered.^^ 


SCOTHORN  V.  SOUTH  STAFFORDSHIRE  RY.  CO. 

(Court  of  Exchequer,  IlilaiT  Term,  1853.     8  Esch.  341.) 

Assumpsit.  The  declaration  stated  that  plaintififs  delivered  goods 
to  the  defendant  railway  company  to  be  carried  for  hire,  and  that  de- 
fendant promised  to  deliver  them  according  to  plaintiflfs'  directions; 
but,  though  plaintiflfs  afterward  directed  defendant  to  deliver  at  the 
Bell  Wharf  in  London,  and  defendant  promised  so  to  do,  defendant 
did  not  do  so,  but  transmitted  the  goods  to  Australia. 

At  the  trial,  before  Martin,  B.,  it  appeared  that  plaintiffs,  who  were 
about  to  emigrate  to  Australia,  delivered  to  defendant  packages  la- 
belled "Scothorn  &  Co.,  to  the  East  India  Docks,  passenger  ship,  Mel- 
bourne, Australia,"  and  paid  freight  to  London.  While  the  goods 
were  in  transit,  plaintiffs,  finding  that  no  berths  could  be  had  on  the 
Melbourne,  notified  a  clerk  at  the  London  railway  station  to  send  the 
packages  to  Scothorn  &  Co.,  Bell  Wliarf,  London,  which  the  clerk 
agreed  should  be  done.  The  goods,  however,  were  sent  to  the  ship 
Melbourne,  and  carried  to  Australia,  where  they  were  lost.  The  jury 
found  that  the  clerk  had  authority  to  receive  the  countermand,  and  the 
judge  directed  a  verdict  for  plaintiffs,  reserving  leave  to  defendant  to 
move  to  enter  a  nonsuit.^'' 

Martin,  B.-"  I  entirely  concur.  If  the  transaction  be  looked  at, 
the  matter  is  transparent.  The  plaintiffs  send  a  parcel  of  goods  to  the 
defendants'  station,  with  a  direction  that  the  goods  shall  be  delivered 
on  board  a  ship  in  the  East  India  Docks.  It  is  said  that  that  is  a  con- 
tract.    In  one  sense  it  is  not.    It  is  the  case  of  a  person  taking  goods, 

IS  Compare  Atchison,  etc.,  Co.  v.  Schriver,  72  Kan.  550,  84  Pac.  119,  4  L.  R. 
A.  (N.  S.)  10.")G  (190G). 

It  has  been  held  that  a  carrier  may  under  ordinary  circumstances  require 
the  production  of  the  bill  of  lading  before  delivery.  Sellers  v.  Savannah,  etc., 
R,  Co.,  123  Ga.  38C,  51  S.  E.  308  (1905).  And  see' post,  p.  190,  note.  And  the 
giving  of  a  written  receipt.  Slclnuer  v.  Riiilroad  Co.,  12  Iowa,  191  (ISGl) ; 
Ayres  v.  Morris,  etc.,  R.  Co.,  29  N.  J.  Law,  393,  80  Am.  Dec.  215  (1862). 

19  The  statement  of  facts  has  been  rewritten. 

2  0  After  opinions,  which  are  here  omitted,  had  been  delivered  by  Alderson 
and  Piatt,  BB.    Part  of  the  opinion  of  Martin,  B.,  is  also  omitted. 


Ch.   3)  THE   COMPLETION    OF   THE   CARRIER'S     UNDERTAKING.  149 

to  be  disposed  of  according  to  the  directions  of  another;  and  could 
it  be  contended  that,  if  the  latter  went  an  hour  afterwards  and  said, 
"I  have  altered  my  mind;  give  me  back  my  goods,"  the  former  would 
have  a  right  to  reply,  "No;  you  have  entered  into  a  contract  with  me 
to  place  them  on  board  a  ship,  and  they  shall  go?"  A  carrier  is  em- 
ployed as  bailee  of  a  person's  goods  for  the  purpose  of  obeying  his 
directions  respecting  them,  and  the  owner  is  entitled  to  receive  them 
back  at  any  period  of  the  journey  when  they  can  be  got  at.  To  say 
that  a  carrier  is  only  bound  to  deliver  goods  according  to  the  owner's 
first  directions  is  a  proposition  wholly  unsupported  either  by  law  or 
common  sense.  I  can  well  understand  the  case  of  goods  being  placed 
in  such  a  position  that  they  cannot  easily  be  got  at.  though  it  is  usually 
otherwise.  But  suppose  a  traveler  by  railway  did  not  wish  to  proceed 
on  his  journey,  and  left  the  carriage  and  asked  for  his  luggage,  which 
he  would  clearly  have  a  right  to  do,  if  Mr.  Gray's  argument  is  correct, 
the  company  might  say,  "No ;  we  have  contracted  to  carry  it  to  the 
end  of  the  journey,  and  we  will  take  it  on." 

It  is  clear,  therefore,  that  the  contract  with  a  carrier  is  to  deliver 
the  goods  according  to  the  directions  of  the  owner.     *     *     * 

Rule  discharged.-^ 


LONDON  &  N.  W.  RY.  CO.  v.  BARTLETT. 

(Court  of  Exchequer,  :Michaelmas  Term,  1861.    7  Hurl.  &  Nor.  400.) 

Case  stated  on  appeal.  The  case  v.as  substantially  as  follows:  The 
plaintiff,  a  farmer,  orally  sold  by  sample  wheat  above  ilO  in  value  to 
Badger,  a  miller  near  Birmingham,  and  shipped  it  by  defendant  rail- 
way company  to  be  delivered  to  Badger  at  his  mill,  paying  a  freight 
which  included  the  charge  for  carrying  by  van,  as  the  railway  made  a 
practice  of  doing,  from  the  Birmingham  station  to  the  mill,  a  distance 
of  about  two  miles.  As  Badger  had  little  warehouse  room  at  the  mill, 
he  requested  the  defendant  not  to  send  him  wheat  from  the  station 
without  his  order.  Consequently,  when  the  wheat  reached  Birming- 
ham, defendant  kept  it  at  the  station  and  notified  Badger  that  it  was 
there  at  his  risk.  Badger  examined  the  wheat,  but  gave  no  order. 
Some  weeks  afterward,  defendant,  learning  that  Badger  had  refused  to 
accept  the  wheat  under  his  contract  of  purchase,  notified  the  plaintiff 

21  The  Martha.  (D.  C.)  35  Fed.  31.3  (1S8S),  was  a  suit  in  admiralty  in  which 
damages  were  claimed  for  deterioration  and  loss  by  leakage  of  glycerine  in 
barrels.  Benedict,  J.,  said:  "The  fact  being  found  that  the  vessel,  in  October, 
put  into  Halifax,  a  port  of  distress,  in  need  of  repairs,  that  were  not  to  be 
completed  until  the  following  February  ;  that  the  consignee  of  the  merchandise 
offered  to  take  it  in  Halifax,  and  pay  all  the  freight  provided  for  in  the  bill 
of  lading,  together  with  all  the  expenses  incident  thereto,  and  to  sign  an  aver- 
age bond;  and  that  the  shipowner,  without  a  reasonable  excuse  refused  to 
make  such  delivery,  but.  on  the  contrary,  held  the  goods  in  the  ship  until  hex* 
arrival  at  the  port  of  New  York — the  liability  of  the  ship  for  all  damages 
caused  to  the  libelant  by  reason  of  the  detention  seems  clear." 


150  THE   carrier's  UNDERTAKING.  (Part  2 

that  the  wheat  was  held  to  await  plaintiff's  orders,  and  that  if  it  was 
not  removed  storage  would  be  charged.  In  the  meantime  the  wheat 
had  deteriorated.  The  trial  judge  charged  that  defendant  was  liable 
in  damages  for  the  deterioration,  and  plaintiff  had  a  verdict  accord- 
ingly. 

Pollock,  C.  B.--  The  subject  has  been  ably  discussed;  but  it 
seems  to  me  that  the  judgment  of  the  court  below  was  wrong,  being 
founded  on  a  notion  that  the  carrier  was  bound  to  deliver  the  wheat 
at  the  mill,  notwithstanding  the  distinct  and  positive  order  of  the  con- 
signee not  to  deliver  it  there.  It  is  clear  that  a  consignee  may  receive 
the  goods  at  any  stage  of  the  journey;  and,  though  the  consignor 
directs  the  carrier  to  deliver  them  at  a  particular  place,  there  is  no  con- 
tract by  the  carrier  to  deliver  at  that  place  and  not  elsewhere.  The 
contract  is  to  deliver  there  unless  the  consignee  shall  require  the  goods 
to  be  delivered  at  another  place.  Here  the  wheat  was  delivered  at  the 
place  where  the  consignee  desired  it  to  be  delivered,  and  therefore  the 
carrier  is  not  liable. 

Bramwell,  B.  I  am  of  the  same  opinion.  I  cannot  think  that  the 
contract  between  the  parties  is  not  only  an  affirmative  contract  to  deliv- 
er at  the  mill,  but  also  a  negative  contract  not  to  deliver  elsewhere.  It 
would  probably  create  a  smile  anywhere  but  in  a  court  of  law,  if  it 
were  said  that  a  carrier  could  not  deliver  to  the  consignee  at  any  place 
except  that  specified  by  the  consignor.  The  goods  are  intended  to 
reach  the  consignee,  and  provided  he  receives  them  it  is  immaterial  at 
what  place  they  are  delivered.  The  contract  is  to  deliver  the  goods  to 
the  consignee  at  the  place  named  by  the  consignor  unless  the  consignee 
directs  them  to  be  delivered  at  a  different  place.  That  being  so,  all 
difficulty  arising  from  the  statute  of  frauds  is  at  an  end.  If,  indeed, 
it  could  be  shown  that  the  consignor  would  be  prejudiced  by  a  deliv- 
ery at  any  other  place  than  that  named,  there  might  be  some  reason 
for  implying  a  contract  to  deliver  at  that  precise  place  and  no  other. 
But  still  I  should  think  that  immaterial,  for  how  can  a  carrier's  lia- 
bility be  affected  by  the  consideration  whether  or  no  there  was  a  writ- 
ten contract  between  the  consignor  and  consignee?  It  seems  to  me 
that  in  no  point  of  view  is  it  material  to  inquire  whether  the  consignor 
can  maintain  an  action  against  the  consignee.  But  I  cannot  help 
thinking  that  the  consignor  is  not  worse  oft'  than  he  would  have  been 
if  the  contract  had  been  strictly  performed ;  because,  whatever  right 
of  rejection  the  consignee  had,  or  within  whatever  time  he  was  bound 
to  reject,  he  has  neither  more  nor  less  than  he  would  have  had  if  the 
wheat  had  been  delivered  at  his  mill.  For  these  reasons  I  think  that 
the  appeal  should  be  allowed. 

Judgment  of  nonsuit.-^ 

2  2  T&e  statement  of  facts  has  been  rewritten. 
2  3  Cliannell  and  Wilde.  BB.,  delivered  concurring  opinions. 
See,  also.  Sweet  v.  Barney,  23  N.  Y.  33.5  (ISGl).     In  Cork  Distilleries  Co.  v. 
Gt.  So.,  etc.,  Co.,  L.  R,  7  H.  L.  269  (1874),  whisky  shipped  to  vendees  at  a  bonded 


Ch.  3)  THE   COMPLETION    OF  THE   CARRIER'S    UNDERTAKING.  151 


SECTION  2.— TO  WHOM  DELIVERY  SHOULD  BE  MADE 


BAILEY  V.  HUDSON  R.  R.  CO. 

(Court  of  Appeals  of  New  York,  1872.    49  N.  Y.  70.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  affirming  a  judgment  in  favor  of 
plaintiffs  entered  upon  a  verdict. 

Action  for  the  conversion  of  eleven  cases  of  dry  goods.  On  the 
13th  October,  1866,  plaintiffs  received  in  New  York,  from  Alden, 
Frink  &  Western,  of  Cohoes,  an  invoice  of  three  cases  of  goods,  con- 
signed to  plaintiffs  on  account  of  consignors  by  the  defendant's  road. 
Plaintiffs  advanced  thereon  three-fourths  of  their  value,  and  at  the 
same  time  loaned  Alden,  Frink  &  Western  $3,974.13,  for  which  that 
firm  gave  their  check  payable  a  few  days  ahead.  The  check  not  being 
paid,  it  was  agreed  that  Alden,  Frink  &  Western  should  ship  to  plain- 
tiff's, to  pay  the  debt,  eight  more  cases  of  goods.  Invoices  were  sent 
to  plaintiffs,  stating  the  goods  were  consigned  to  plaintiffs  on  account 
of  the  consignors. 

On  the  16th  and  ITth  of  October,  all  the  eleven  cases  were  consigned 
to  plaintiffs,  and  delivered  to  defendant's  agent  at  Troy,  to  be  by  de- 
fendant transported  to  plaintiffs,  the  defendant  at  the  time  giving  its 
receipt,  promising  and  agreeing  therein  to  transport  and  deliver  the 
goods  to  plaintiffs,  at  New  York.  Instead  of  delivering  the  goods  to 
plaintiffs,  defendant,  without  requiring  the  surrender  of  its  receipts, 
allowed  Mr.  Frink,  unbeknown  to  his  firm,  to  change  their  destina- 
tion, and,  in  pursuance  of  his  order,  the  goods  were  delivered  to  Albert 
Jewett  &  Co.,  of  New  York  City,  by  whom  they  were  sold,  and  the 
proceeds  paid  over  to  Frink. 

The  firm  of  Alden,  Frink  &  Western  were  at  this  time  insolvent. 
Plaintiff  demanded  the  goods  of  defendant's  agent  in  New  York.    The 

warehouse  was  at  their  request  delivered  to  them  elsewhere,  in  consequence 
of  which  the  shipper  was  compelled  to  pay  the  excise.  The  carrier,  who  had 
no  notice  of  the  circumstances,  was  held  not  liable  to  the  shipper. 

A  settlement  with  the  consignee  for  goods  lost  generally  discharges  the  car- 
rier from  liability  to  the  consignor.  Scammon  v.  Wells  Fargo  &  Co.,  84  Cal. 
311,  24  Pac.  284  (1800). 

In  Dobbin  v.  Mich.  Cent.  R.  Co.,  56  Mich.  522,  23  N.  W.  204  (1885)  the  con- 
signee wrote  to  the  carrier:  "I  have  no  claim  on  them  brick.  *  *  *  You 
can  let  Mr.  Doyle  have  them."  This  was  considered  to  justify  a  direction  to 
the  jury  that  the  carrier  was  not  liable  to  the  shipper  for  delivery  to  Doyle. 

Compare  Southern  Express  Co.  v.  Dickson.  94  U.  S.  549,  24  L.  Ed.  285  (1876), 
in  which  tobacco  known  to  belong  to  the  shipper  was  on  the  order  of  the  con- 
signee delivered  to  a  third  person  at  the  place  of  shipment,  and  the  carrier  was 
held  liable. 


152  THE  carrier's  undertaking.  (Part  2 

court,  under  exceptions  of  defendant,  ordered  a  verdict  for  the  plain- 
tiffs for  the  vakie  of  the  goods. 

Church,  C.  J."*  *  *  *  It  is  clear  that  the  consignors  delivered 
the  goods  to  the  carrier  for  the  plaintiffs  in  compliance  with  their  con- 
tract to  do  so.  The  parol  contract  was  thereby  executed,  and  the  title 
vested  in  the  plaintiffs.  The  plaintiffs  occupied  the  legal  position  of 
vendees  after  having  paid  the  purchase-money  and  received  the  de- 
livery of  the  goods.  But  it  is  unnecessary,  in  order  to  uphold  this 
judgment,  to  maintain  that  the  plaintiffs  occupied  strictly  the  relation 
of  vendees.  The  legal  rights  of  a  vendee  attach  when  goods  are 
shipped  to  a  commission  merchant,  who  has  made  advances  upon  them 
in  pursuance  of  an  agreement  between  the  parties.     *     *     * 

It  is  urged  by  the  counsel  for  the  defendant  that  no  bill  of  lading 
was  forwarded  or  delivered  to  the  plaintiffs,  and  that  until  this  was 
done  the  title  remained  in  the  consignors.  This  is  undoubtedly  true 
in  many  cases ;  but  it  is  mainly  important  in  characterizing  the  act  of 
the  shipper,  and  showing  with  what  purpose  and  intent  the  goods  were 
delivered  to  the  carrier.  If  A.  has  property,  upon  which  he  has  re- 
ceived an  advance  from  B.  upon  an  agreement  that  he  will  ship  it  to 
B.  to  pay  the  advance  or  to  pay  any  indebtedness,  he  may  or  may  not 
comply  with  his  contract.  He  may  ship  it  to  C.  or  he  may  ship  it  to 
B.  upon  conditions.  As  owner  he  can  dispose  of  it  as  he  pleases.  But 
if  he  actually  ships  it  to  B.  in  pursuance  of  his  contract,  the  title  vests 
in  B.  upon  the  shipment.  The  highest  evidence  that  he  has  done  so 
is  the  consignment  and  unconditional  delivery  to  B.  of  the  bill  of 
lading.     *     *     * 

In  this  case  there  was  no  other  bill  of  lading  than  the  receipt  pro- 
duced in  evidence,  and  no  duplicate  was  taken ;  but  the  intention  of 
Alden,  Frirrk  &  Western  to  transfer  this  specific  property  to  the  plain- 
tiffs, to  be  applied  upon  their  indebtedness,  conclusively  appears  by 
the  undisputed  evidence:  (1)  By  the  agreement  the  day  prior  to  the 
shipment.  (2)  By  forwarding  invoices  of  the  shipment  to  the  plain- 
tiffs. (3)  By  making  the  shipment  unconditionally.  (4)  By  retaining 
the  receipt  given  by  the  defendant,  and  neither  making  nor  attempting 
to  make  any  use  of  it.     *     *     * 

It  is  urged  that  the  words  "on  our  account,"  in  the  invoices,  evinced 
an  intention  not  to  vest  the  title  in  the  plaintiffs.  They  can  have  no 
such  effect  in  this  case,  even  if  standing  alone  and  unexplained  they 
might  have.  A  bill  of  lading  for  which,  as  between  the  parties,  the  in- 
voices were  a  substitute,  can  always  be  explained  by  parol.  It  may  be 
shown  by  parol  to  have  been  intended  as  evidence  of  an  absolute  sale, 
a  trust,  a  mortgage,  a  pledge,  a  lien,  or  a  mere  agency.  Grosvenor  v. 
Phillips,  2  Hill,  151;  Bank  of  Rochester  v.  Jones,  1  N.  Y.  501,  55  Am. 
Dec.  290,  and  cases  cited.  The  actual  agreement  and  transaction  will 
prevail,  and  it  was  proved  by  two  of  the  members  of  the  firm,  and 

4*  Parts  of  the  opinion  are  omitted. 


Ch.   3)  THE   COMPLETION    OF  THE   CARRIER'S  UNDERTAKING.  155 

uncontradicted,  that  the  goods  were,  in  fact,  shipped  in  pursuance  of 
the  agreement. 

Besides,  these  words  are  not  necessarily  inconsistent  with  the  agree- 
ment. The  goods  were  not  purchased  absolutely  by  the  plaintiffs  at  a 
specified  price,  but  w-ere  to  be  sold  and  the  avails  applied.  The  rela- 
tion of  the  plaintiffs  was  more  nearly  that  of  trustee,  having  the  title, 
and  bound  to  dispose  of  the  property  and  apply  the  proceeds  in  a  par- 
ticular manner,  and  the  consignors  were  the  cestuis  que  trust,  having 
the  legal  right  to  enforce  the  terms  of  the  agreement  for  their  benefit. 
In  this  sense  the  property  was  shipped  on  their  account,  and  the  agree- 
ment is  consistent  with  the  meaning  of  those  words. 

The  statute  of  frauds  has  no  application.  (1)  There  was  no  sale. 
(2)  If  there  was,  the  consideration  was  paid.  (3)  The  property  was 
specified  when  the  agreement  was  made  as  being  that  which  had  been 
and  was  then  being  shipped,  and  the  plaintiflFs  agreed  to  accept  that 
particular  property,  and  the  subsequent  delivery  to  the  carrier  agreed 
upon  was  in  legal  effect  a  delivery  to  the  plaintiffs.  Cross  v.  O'Don- 
nell.  44  N.  Y.  661,  4  Am.  Rep.  r21 ;'  Stafford  v.  Webb,  Lalor,  Supp.  2i:. 

The  defendant  is  liable  for  a  conversion  of  the  property.  It  had 
receipted  the  property  and  agreed  to  transport  safely,  and  deliver  it 
to  the  plaintiff's.  Instead  of  complying  with  its  contract,  it  delivered 
the  property  to  another  person  by  the  direction  of  one  who  had  no 
more  legal  authority  over  the  property  than  a  stranger,  without  the 
return  even  of  its  receipt.  The  plaintiffs  had  vested  rights  which  the 
defendant  was  bound  to  respect,  and  with  a  knowledge  of  which  it  was 
legally  chargeable.  Willetts  v.  Sun  :\Iut.  Ins.  Co.,  45  X.  Y.  49,  6  Am. 
Rep.  31;  Hawkins  v.  Hoffman,  6  Hill,  586,  41  Am.  Dec.  76:;  Hol- 
brook  v.  Wight,  24  Wend.  169,  35  Am.  Dec.  607 ;  Story  on  Bailment, 
414;  Boyce  v.  Brockway,  31  N.  Y.  490.  It  was  its  duty  to  deliver 
the  property  to  the  real  owner.  ^IcEntee  v.  New  Jersey  Steamboat 
Co.,  45  N.  Y.  34,  6  Am.  Rep.  28   [ante,  p.  146]. 

Judgment  affirmed,  with  costs.- ^ 


LOUISVILLE  &  N.  R.  CO.  v.  HARTWELL. 

(Court  of  Appeals  of  Kentiicky,  189«3.    99  Ky.  436,  36  S.  W.  183.) 

Paynter,  J.-®  On  the  9th  of  September,  1892,  Hartwell  delivered 
to  the  appellant  for  shipment  to  A.  Pennington  &  Co.,  of  St.  Louis. 
Mo.,  170  barrels  of  apples,  for  which  he  received  from  it  a  bill  of 
lading.  On  the  day  following,  Hartwell  made  a  draft  in  favor  of  the 
First   National   Bank  of  Elizabethtown,  Ky.,  on  the  consignees,  A. 

2  5  Compare  Chaflfe  v.  Miss.  R.  Co.,  59  Miss.  182  (1881);  Lewis  v.  Galena, 
etc.,  R.  Co.,  40  111.  281.  2S9  (1866). 

26  Parts  of  the  opinion  liave  been  omitted. 


154  THE  carrier's  undertaking.  (Part  2 

Pennington  &  Co.,  for  $300,  and  at  the  same  time  delivered  to  it  the 
bill  of  lading.  He  then  notified  the  appellant  not  to  deliver  the  apples 
to  the  consignee  unless  he  presented  the  bill  of  lading  and  paid  the 
draft  which  he  had  drawn  in  favor  of  the  bank.  In  violation  of  Hart- 
well's  order,  the  appellant  delivered  to  A.  Pennington  &  Co.  the  apples, 
without  requiring  them  to  present  the  bill  of  lading  and  pay  the  draft. 
The  bank  gave  Hartwell  credit  for  the  draft,  but,  Pennington  &  Co. 
failing  to  pay  it,  this  action  was  brought  to  recover  the  amount  of  it 
of  the  appellant.  The  answer  denied  that  Hartwell  was  the  owner  of 
the  apples,  and  alleged  that  they  were  owned  by  Pennington  &  Co. 

The  shipper  of  goods  may,  even  after  the  delivery  to  the  carrier,  and 
after  the  bill  of  lading  has  been  signed  and  delivered,  alter  their 
destination,  and  direct  their  delivery  to  another  consignee,  unless  the 
bill  of  lading  has  been  forwarded  to  the  consignee,  or  some  one  for  his 
use.^^  However,  this  would  not  be  the  case  if  a  state  of  facts  existed 
which  made  the  delivery  of  the  goods  to  the  carrier  a  delivery  to  the 
consignee  and  the  owner  of  them.  Hutch.  Carr.  [2d  ,Ed.]  §  134. 
While  the  consignee  in  the  bill  of  lading  is  presumptively  the  owner  of 
the  goods,  and  must  be  treated  by  the  carrier  as  the  owner,  unless  he 
has  notice  to  the  contrary,  when  goods  are  shipped  deliverable  to 
the  order  of  the  consignor  for  and  on  account  of  the  consignee,  the 
carrier  cannot  deliver  them  to  such  consignee  except  upon  the  produc- 
tion of  the  bill  of  lading,  properly  indorsed  by  the  consignor.  When 
the  goods  are  thus  shipped  and  deliverable,  the  carrier  must  take  notice 
that  the  consignor  intended  to  retain  control  of  the  disposition  of  the 
goods.  Id.  §  130.  So,  when  the  shipper  gives  notice,  after  they  have 
been  received  by  the  carrier  for  transportation,  and  before  they  are 
delivered  to  the  consignee,  that  he  is  not  to  deliver  them  to  the  con- 
signee, he  must  take  notice  that  the  consignor  intends  to  retain  control 
of  their  ultimate  disposition.  After  such  notice  the  presumption  no 
longer  obtains  that  the  consignee  is  the  owner  of  the  goods. 

Bills  of  lading  are  assignable.  When  properly  indorsed,  and  de- 
livered with  the  intention  of  passing  the  title  to  them,  it  is  a  con- 
structive delivery  of  the  goods.  Id.  §  129.  In  the  same  way  they 
could  be  pledged  to  pay  a  debt,  and  thus  give  the  assignee  control  of 
the  goods.  There  was  no  proof  as  to  the  value  of  the  apples.  *  *  * 
The  company  can  only  be  made  to  pay  the  bank  such  damages  as  it 

2  7  "It  now  becomes  necessary  to  consider  the  effect  of  the  bill  of  lading. 
*  *  *  As  between  the  owner  and  shipper  of  the  goods  and  the  captain,  it 
fixes  and  determines  the  duty  of  the  latter  as  to  the  person  to  whom  it  is  (at 
the  time)  the  pleasure  of  the  former  that  the  goods  should  be  delivered.  But 
there  is  nothing  final  or  irrevocable  in  its  nature.  The  owner  of  the  goods 
may  change  his  purpose,  at  any  rate  before  the  delivery  of  the  goods  themselves 
or  of  the  bill  of  lading  to  the  party  named  in  it,  and  may  order  the  delivery 
to  be  to  some  other  person,  to  B.  instead  of  to  A.  This  therefore  being,  as 
we  think  it  is,  the  true  construction  of  the  bill  of  lading,  and  its  effect,  it  is, 
in  our  opinion,  conclusive  against  the  argument  that  the  property  in  the  sugars 
was  vested  in  the  defendants  by  the  captain's  signature  of  it."  Lord  Deuman, 
C.  J.,  in  Mitchel  v.  Ede,  11  A.  &  E.  888  (1840). 


Ch.   3)  THE   COMrLETION    OF  THE   CARRIER'S  UNDERTAKING.  155 

sustained,  not  exceeding  in  amount  the  value  of  the  apples,  but  in  no 
event  more  than  the  $300.    *    *    * 

The  judgment  is  reversed  for  further  proceedings  in  conformity 
with  this  opinion. 


NEBRASKA  MEAL  MILLS  v.  ST.  LOUIS  SOUTHWESTERN 

RY.  CO. 

(Supreme  Court  of  Arkansas,  1897.     04  Ark.  1G9,  41  S.  W.  810,  38  L.  R.  A. 
358,  62  Am.  St.  Rep.  183.) 

Action  by  shipper  against  carrier  for  wrongful  delivery  of  the  goods. 
From  a  judgment  for  defendant,  plaintiff  appeals. 

RiDDiCK,  J.-^  The  bill  of  lading  under  which  the  meal  was  for- 
warded by  defendant  railway  company  stipulated  that  it  was  to  be 
transported  to  Altheimer,  Ark.,  and  there  delivered  to  the  consignee, 
E.  D.  Russell.  It  is  admitted  that  the  railway  company  performed 
its  contract  in  strict  accordance  with  its  terms.  But  it  is  said  that 
the  consignee,  Russell,  had  not  paid  for  the  mxcal ;  that  the  consignor 
had  drawn  upon  him  for  the  price  of  the  meal,  and  had  forwarded  the 
draft,  with  the  bill  of  lading  attached  thereto,  to  a  bank  for  collection, 
thus  showing  an  intention  that  Russell  should  not  have  the  meal  with- 
out first  paying  for  it.  The  answer  to  this  argument  is  that,  if  it  be 
true  that  the  consignor  did  not  intend  that  the  meal  should  be  delivered 
until  the  payment  of  the  purchase  price,  yet  it  is  also  true  that  the  rail- 
way company  had  no  notice  of  such  mtention.  The  meal  was  billed 
"straight"  to  the  consignee,  and,  as  the  railway  company  had  no  notice 
of  the  intention  of  the  consignor  to  retain  the  ownership  and  control 
of  the  property,  it  was  justified  in  presuming  that  the  consignee  was 
the  owner  thereof,  and  was  discharged  by  a  delivery  to  him  at  the  place 
specified  in  the  bill  of  lading.  Sweet  v.  Barney,  23  N.  Y.  335  ;  O'Dough- 
erty  v.  Railroad  Co.,  1  Thomp.  &  C.  (N.  Y.)  477 ;  Lawrence  v.  Min- 
turn,  17  How.  100,  15  L.  Ed.  58;  ^IcEwen  v.  Railroad  Co..  33  Ind. 
368.  5  Am.  Rep.  216;   Hutch.  Carr.  §  130;   Elliott,  R.  R.  §  1426. 

It  is  argued  for  appellant  that  the  railway  carrier  had  no  right  to 
deliver  to  the  consignee  except  upon  a  production  of  the  bill  of  lading. 
To  this  argument  we  reply  that  the  carrier  must  deliver  in  accordance 
with  the  bill  of  lading,  and  if  it  delivers  without  requiring  the  produc- 
tion of  the  bill  of  lading  it  assumes  the  consequence  of  a  wrong  de- 
livery. But  in  this  case  the  delivery  was  made  strictly  in  accordance 
with  the  requirement  of  the  bill  of  lading  which  evidenced  the  con- 
tract made  with  plaintiff,  and  he  therefore  has  no  right  to  complain. 
*  *  *  In  this  case  the  appellant  could  have  protected  itself  against 
the  failure  of  the  consignee  to  pay  for  the  meal  by  making  the  con- 

28  The  statement  of  facts  has  been  rewritten,  and  part  of  the  opinion  omit- 
ted. 


156  THE  carrier's  undertaking.  (Part  2 

signment  to  its  own  order,  or,  after  the  meal  had  been  consigned  tO' 
Russell,  it  might,  upon  discovery  of  his  insolvency,  have  effected  the 
the  same  purpose  by  stoppage  in  transitu,  and  notice  to  the  railway 
company  not  to  deliver  until  payment  of  the  draft  to  which  the  bill 
of  lading  had  been  attached.  But  the  appellant  failed  to  do  this,  and 
the  railway  company  in  good  faith  delivered  the  meal  in  accordance 
with  its  contract  and  the  directions  of  appellant,  as  shown  by  the  bill 
of  lading. 

Under  such  circumstances,  it  seems  to  us,  notwithstanding  the  able 
argument  of  counsel  for  appellant,  that  this  claim  for  damages  has 
neither  the  letter  of  the  law  nor  any  principle  of  justice  to  sustain 
it.    Judgment  affirmed. -° 

Battle,  J.,  dissents. 


FORBES  V.  BOSTON  &  L.  R.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1882.     133  Mass.  I.j4.) 

Morton,  C.  J.^°  The  first  case  is  an  action  of  tort,  containing  a 
count  for  the  conversion  of  a  quantity  of  corn  and  a  count  for  the 
conversion  of  a  quantity  of  wheat.  As  different  considerations  apply 
to  the  two  counts,  they  must  be  treated  separately. 

On  or  about  October  20,  1879,  Gallup,  Clark  &  Co.,  grain  dealers  in 
Chicago,  in  response  to  an  order  from  Foster  &  Co.,  forwarded  to 
Boston  50  car  loads  of  corn,  by  the  National  Dispatch  Fast  Freight 
Line,  which  is  an  association  of  several  railroad  companies,  whose 
roads  made  a  continuous  line  from  Chicago  to  Boston,  the  defendant's 
road  being  a  part  of  the  line.  Upon  the  shipping  of  the  corn,  an  in- 
land bill  of  lading  was  issued,  by  which  it  w-as  consigned  to  the  order 
of  Gallup,  Clark  &  Co.,  at  Boston.  Gallup.  Clark  &  Co.  drew  a  draft 
upon  Foster  &  Co.  for  the  price  of  the  corn,  attached  to  it  the  bill  of 

29  Ace.  Nashville,  etc..  Ry.  Co.  v.  Grayson  Bank,  100  Tex.  17,  93  S.  W.  431 
(1006).  Contra,  The  Stettin,  14  P.  D.  142  (1889).  In  this  case  Butt,  J.,  said: 
"According  to  English  law  and  the  English  mcKle  of  conducting  business,  a  ship- 
owner is  not  entitled  to  deliver  goods  to  the  consignee  without  the  production 
of  the  bill  of  lading."  Compare  McEwen  v.  Jefferson,  etc.,  Co.,  33  Ind.  3G8,  5 
Am.  Rep.  21P>  (1870).  "to  be  delivered  to  C  on  payment  of  freight  and  presenta- 
tion of  duplicate  hereof,"  delivery  made  without  presentation  of  original  or 
duplicate  bill  of  lading;  Viner  v.  S.  8.  Co..  50  N.  Y.  23  (1872).  butter  to  ship- 
per's order  without  bill  of  lading  delivered  to  recipient  of  letter  saying,  "The 
roll  I  have  sent  you  to-day  you  will  find  of  good  quality ;"  Colgate  v.  Pa.  Co., 
102  N.  Y.  120,  G  N.  E.  114  (1880),  delivery  in  violation  of  statute  requiring  de- 
livery only  on  surrender  of  bill  of  lading ;  AVeyand  v.  Atch.,  etc.,  Ry.  Co.,  75 
Iowa,  580,  .39  N.  W.  899.  1  L.  R.  A.  6.50,  9  Am.  St.  Rep.  504  (1888),  delivery  to 
buyer  on  unindorsed  bill  of  lading  "to  shipper"  sent  buyer  by  way  of  advice; 
Louisville,  etc.,  Co.  v.  Rarkhouse,  100  Ala.  543.  13  South.  .534  (1892),  delivery 
to  P.  on  unindorsed  bill  of  lading  to  C  intrusted  by  C.  to  P.'s  possession : 
Gates  v.  C,  B.  &  Q.  R.  Co..  42  Neb.  379.  60  N.  W.  583  (18!M),  goods  consigned 
to  shipper's  agent  held  well  delivered  at  agent's  direction  to  buyer. 

30  Part  of  the  opinion  is  omitted. 


Ch.   3)  THE   COMPLETION    OF   THE   CARRIER'S  UNDERTAKING.  157 

lading,  and  forwarded  both  to  the  Tremont  National  Bank  of  Boston. 
On  October  24,  1879,  Foster  &  Co.  paid  to  the  bank  the  amount  of 
the  draft,  and  the  draft  and  bill  of  lading  were  delivered  to  them.  Im- 
mediately upon  obtaining  the  draft  and  bill  of  lading,  Foster  &  Co. 
indorsed  them  to  the  plaintiffs,  as  security  for  an  advance  then  made 
by  the  plaintiffs  to  the  full  amount  of  the  draft,  and  they  have  held 
them  ever  since.  The  corn  mentioned  in  the  bill  of  lading  was  re- 
ceived and  transported  by  the  defendant,  arriving  in  Boston  on  Oc- 
tober 30,  1879.  It  remained  in  its  cars  until  December  12,  1879,  when 
by  the  orders  of  Foster  &  Co.  it  was  shipped  on  board  a  vessel  for 
Cork,  and  exported  to  Ireland.  Foster  &  Co.  did  not  produce  and  pre- 
sent to  the  defendant  the  bill  of  lading,  but  represented  that  it  was  in 
their  possession. 

Upon  these  facts,  it  is  too  clear  to  admit  of  any  doubt  that,  by  the 
transfer  of  the  draft  and  bill  of  lading  by  Foster  &  Co.  to  the  plain- 
tiffs, the  title  and  property  in  the  corn  passed  to  them.  The  bill  of 
lading,  though  not  strictly  a  negotiable  instrument,  like  a  bill  of  ex- 
change, was  the  representative  of  the  property  itself.  It  was  the 
means  by  which  the  property  was  put  under  the  power  and  control  of 
the  plaintiffs,  and  the  delivery  of  it  was  for  most  purposes  equivalent 
to  an  actual  delivery  of  the  property  itself.'^ 

The  transaction  between  Foster  &  Co.  and  the  plaintiffs  was  not  in 
form  or  in  effect  a  mortgage,  so  that,  as  contended  by  the  defendant, 
it  must  be  recorded  in  order  to  have  validity.  It  was  a  transfer  and 
delivery  of  the  property.  The  clear  intent  of  the  parties  was  that  the 
property  in  the  corn  should  pass  to  the  plaintiffs  as  security  for  the 
advance  made  by  them.  Whether  they  took  an  absolute  title  with  a 
liability  to  account  for  the  proceeds,  or  a  title  as  pledgees,  is  not  ma- 
terial, as  all  the  authorities  show  that  they  took  either  a  general  or  a 
special  property  in  the  corn,  which  entitles  them  to  recover  of  any  one 
who  wrongfully  converts  it.  De  Wolf  v.  Gardner.  12  Cush.  19.  59  Am. 
Dec.  165;  Cairo  National  Bank  v.  Crocker,  111  Mass.  1G3  ;  Green 
Bay  National  Bank  v.  Dearborn,  115  Mass.  219,  15  Am.  Rep.  92; 
Chicago  National  Bank  v.  Bayley,  115  Mass.  228;  Hathaway  v. 
Haynes,  124  Mass.  311 ;  Gibson  v.  Stevens.  8  How.  384,  12  L.  Ed. 
1123;  Dows  v.  National  Exchange  Bank,  91  U.  S.  618,  23  L.  Ed.  214. 
Numerous  other  cases  might  be  cited.     The  delivery  of  the  bill  of 

31  "A  cariaro  at  sea,  while  in  the  hauds  of  the  carrier,  is  necessarily  incapable 
of  physical  delivery.  During  this  period  of  transit  and  voyage,  the  bill  of  lad- 
ing by  the  law  merchant  is  universally  recognized  as  its  symbol,  and  the  in- 
dorsement and  delivery  of  the  bill  of  lading  operates  as  a  symbolical  delivery 
of  the  cargo.  Property  in  the  goods  passes  by  such  indorsement  and  delivery 
of  the  bill  of  lading,  whenever  it  is  the  intention  of  the  parties  that  the  prop- 
erty should  pass,  just  as  under  similar  circumstances  the  property  would  pass 
by  an  actual  delivery  of  the  goods.  *  *  *  It  is  a  key  which  in  the  hands 
of  a  rightful  ownev  is  intended  to  unlock  the  door  of  the  warehouse,  floating 
or  fixed,  in  which  the  goods  may  chance  to  be."  Bowen,  L.  J.,  iu  Sanders  v. 
Maclean,  11  Q.  B.  D.  327,  341  (1883). 


158  THE  carrier's  undertaking.  (Part  2 

lading  was  in  law  the  delivery  of  the  property  itself,  and  it  was  not 
necessary  that  the  plaintiffs  should  take  immediate  possession  of  it 
upon  its  arrival,  or  that  they  should  give  notice  to  the  carrier  or  ware- 
houseman who  held  the  property.  Farmers'  &  ^Mechanics'  National 
Bank  V.  Logan,  74  N.  Y.  568 ;  The  Thames,  14  Wall.  98,  20  L.  Ed. 
804;  Meyerstein  v.  Barber,  L.  R.  2  C.  P.  38,  G61 ;  Id.,  L.  R.  4  H.  L. 
317.  It  is  true  that  the  plaintiffs  might  by  their  subsequent  laches 
defeat  their  right  to  assert  their  title.  If  they  permitted  the  property 
to  remain  under  the  control  of  their  assignors,  and  held  them  out  to 
the  world  as  having  the  right  to  deal  with  the  property,  they  might  be 
estopped  from  setting  up  their  title.  But  the  authorities  are  decisive 
to  the  point  that,  by  the  transfer  from  Foster  &  Co.,  they  took  a  title 
as  purchasers  of  the  corn  which  entitles  them  to  maintain  this  action, 
unless  they  have  lost  the  right  by  their  laches,  upon  proving  a  conver- 
sion by  the  defendant. 

The  next  question  is  whether  there  was  a  conversion  by  the  defend- 
ant. It  is  settled  that  any  misdelivery  of  property  by  a  carrier  or  ware- 
houseman to  a  person  unauthorized  by  the  owner  or  person  to  whom 
the  carrier  or  warehouseman  is  bound  by  his  contract  to  deliver  it,  is 
of  itself  a  conversion,  which  renders  the  bailee  liable  in  an  action  of 
tort  in  the  nature  of  trover,  without  regard  to  the  question  of  his  due 
care  or  negligence.  Hall  v.  Boston  &  Worcester  Railroad,  14  Allen, 
439,  92  Am.  Dec.  783.  By  the  bill  of  lading,  and  by  the  waybill  which 
was  sent  to  the  defendant  in  the  place  of  a  duplicate  bill  of  lading,  the 
corn  was  to  be  delivered  to  the  order  of  Gallup,  Clark  &  Co.  The  de- 
fendant contracted  to  deliver  it  to  such  person  as  Gallup,  Clark  & 
Co.  should  order,  and  could  not  without  violating  its  contract  deliver- 
it  to  any  other  person. ^^     By  delivering  it  to  Foster  &  Co.,  therefore, 

32  "The  indorsement  of  the  bill  of  lading  is  simply  a  direction  of  the  delivery 
of  the  goods.  When  this  indorsement  is  in  blank,  the  holder  of  the  bill  of  lad- 
ing may  receive  the  goods,  and  his  receipt  will  discharge  the  shipmaster ;  bnt 
the  holder,  if  it  came  into  his  hands  casually,  without  any  just  title,  can  ac- 
quire no  property  in  the  goods.  A  special  indorsement  defines  the  person  ap- 
pointed to  receive  the  goods ;  his  receipt  or  order  would,  I  conceive,  be  a  suf- 
ficient discharge  to  the  shipmaster;  and  in  this  respect  I  hold  the  bill  of  lad- 
ing to  be  assignable."  Lord  Loughborough,  in  Lickbarrow  v.  Mason  (Exchequer 
Chamber,  1790)  1  H.  Bl.  357.  S.IO.  3fi0. 

"I  am  of  opinion  that  a  blank  indorsement  has  precisely  the  same  effect  that 
an  indorsement  to  deliver  to  the  plaintiffs  would  have.  *  *  *  j|g  ^yjjQ  ^^e- 
livers  a  bill  of  lading,  indorsed  in  blank  to  another,  not  only  puts  it  in  the 
power  of  the  person  to  whom  it  is  delivered,  but  gives  him  authority  to  fill  it 
up  as  he  pleases ;  and  it  has  the  same  effect  as  if  it  were  filled  up  with  an  or- 
der to  deliver  to  him."  Buller,  J.,  in  Lickbarrow  v.  Mason,  G  East,  20  (1793), 
note. 

"He  [the  shipmaster]  is  a  person  who  has  entered  Into  a  contract  with  the 
shipper  to  carry  the  goods,  and  to  deliver  them  to  the  persons  named  in  the 
bill  of  lading — m  this  case  Cottam  &  Co. — or  their  assigns ;  that  is,  assigns 
of  the  bill  of  lading,  not  assigns  of  the  goods.  And  I  quite  assent  to  what  was 
said  in  the  argument  that  this  means  to  Cottam  &  Co.  if  they  have  not  assigned 
the  bill  of  lading,  or  to  the  assign  if  they  have.  If  there  were  only  one  part 
of  the  bill  of  lading,  the  obligation  of  the  master  under  such  a  contract  would 
be  clear.    He  would  fulfill  the  contract  if  he  delivered  to  Cottam  &  Co.  on  their 


Ch.   3)  THE   COMPLETION    OF   THE   CARRIER'S    UNDERTAKING.  159 

the  defendant  became  liable  for  a  conversion,  unless  it  shows  some 
valid  excuse.  Newcomb  v.  Boston  &  Lowell  Railroad,  115  Mass.  230 ; 
Alderman  v.  Eastern  Railroad,  115  Mass.  233.  The  record  before  us 
does  not  show  any  laches  or  any  act  of  the  plaintiffs  which  can  excuse 
or  justify  this  misdelivery.  They  did  not  hold  Foster  &  Co.  out  to  the 
world  or  to  the  defendant  as  one  entitled  to  control  the  property.  In- 
deed, it  is  admitted  that  the  defendant  did  not  know,  until  long  after 
the  delivery,  that  the  plaintiffs  had  any  connection  with  the  property, 
or  with  Foster  &  Co.  The  plaintiffs  did  nothing  to  mislead  the  de- 
fendant. They  had  the  right  to  rely  upon  the  facts  that  they  held  the 
bill  of  lading,  and  that,  according  to  the  ordinary  course  of  business, 
the  goods  could  not  be  obtained  except  upon  its  production.  The  de- 
fendant saw  fit  to  deliver  them  to  Foster  &  Co.  without  requiring  them 
to  produce  the  bill  of  lading,  relying  upon  their  representation  that 
they  were  the  holders  of  it.  It  took  the  risk  of  their  truthfulness,  and 
cannot  now  shift  that  risk  upon  the  plaintiffs,  who  have  done  nothing 
to  mislead  or  deceive  the  defendant.  We  are,  for  these  reasons,  of 
opinion  that  the  defendant  is  liable  for  the  value  of  the  corn  described 
in  the  first  count  of  the  declaration.^''^ 

In  the  case  of  the  wheat,  there  are  some  facts  proved  at  the  trial 
which  lead  us  to  a  different  result.  By  the  bills  of  lading  and  the 
waybills,  the  wheat  was  consigned  to  John  H.  Foster  &  Co.  at  Boston. 
The  fact  that  they  did  not  contain  the  words  "or  order,"  or  other 
equivalent  words,  so  as  to  make  them  upon  the  face  quasi  negotiable, 
is  not  important.  The  bill  of  lading  was  yet  the  representative  of  the 
wheat,  and  its  transfer  and  delivery  to  the  plaintiffs  vested  in  them  the 
title  to  the  property,  as  against  the  consignees  and  their  creditors.  But 
the  presiding  justice  of  the  superior  court  who  heard  the  case  has 
found  as  a  fact,  "that  it  was  the  custom  of  the  railroads  terminating 
in  Boston  to  deliver  to  the  consignee  goods  'billed  straight'  as  it  is 
termed,  that  is,  billed  to  a  particular  person,  not  to  order,  when  they 
were  satisfied  of  the  identity  of  the  consignee,  without  requiring  the 
production  of  the  bills  of  lading,  and  to  rely  upon  the  waybills  to  de- 
termine the  consignee  and  the  form  of  the  consignment." 

producing  the  bill  of  lading  unindorsed.  He  would  also  fulfill  his  contract  if  he 
delivered  the  goods  to  anv  one  producing  the  bill  of  ladhig  with  a  genuuie  m- 
dorsemeut  by  Cottam  &  Co.  He  would  not  fulfill  his  «)ntract  if  he  delivered 
them  to  any  one  else,  though,  if  the  person  to  whom  he  delivered  was  really 
entitled  to  the  possession  of  the  goods,  no  one  might  be  entitled  to  recover  dam- 
ages from  him  for  that  breach  of  contract."  Lord  Blackburn,  in  Glyu  Mills 
&  Co.  V.  East  &  West  India  Dock  Co.,  L.  R.  7  App.  Cas.  501,  GIO  (1882). 

3  3  Ace  The  Thames,  14  Wall.  98.  20  L.  Ed.  804  (1871) ;  Midland  Nat.  Bk.  v. 
Mo  K  &  T  Rv  Co.,  62  :\Io.  App.  581  (1895) ;  Southern  Ry.  Co.  v.  Atlanta  Nat. 
Bk''  112  Fed  SGI.  50  C.  C.  A.  558,  56  L.  B.  A.  546  (1902).  See,  also,  First  Nat. 
Bk"  V  Northern  R.  Co..  58  N.  H.  203  (1877) ;  Nat.  Bk.  of  Chester  v.  Atlanta, 
etc'  Rv  Co  25  S  C  216  (1886) ;  No.  Pa.  R.  Co.  v.  (Commercial  Bk.,  123  U.  S. 
T>7  8  Sup  'Ct  266,  .31  L.  Ed.  287  (1887) ;  Furmau  v.  U.  P.  R.  Co..  106  N.  Y. 
579  (1887),  goods  shipped  to  seller's  order  with  direction  to  carrier  to  notify 
the  buyer. 


IGO  THE  carrier's  undertaking.  (Part  2 

Under  this  finding,  we  must  assume  that  the  custom  existed,  and 
that  the  plaintiffs  knew  or  ought  to  have  known  of  it.  It  materially 
affects  the  relations  and  rights  of  the  parties.  Although  it  does  not 
affect  the  question  of  the  title  of  the  plaintiffs  as  against  Foster  &  Co., 
it  qualifies  the  duties  of  the  defendant  as  to  the  delivery  of  the  wheat. 
It  justified  the  defendant  in  delivering  it  to  Foster  &  Co.,  the  con- 
signees, at  least  at  any  time  before  notice  that  the  property  had  been 
transferred.  Under  it,  there  was  no  laches  in  not  calling  for  the  bill 
of  lading;  and,  in  thus  delivering,  there  was  no  violation  of  any  of 
the  terms  of  its  contract,  express  or  implied.  Such  delivery  there- 
fore was  not  a  misdelivery  which  would  amount  to  a  conversion  and 
render  the  defendant  liable  to  the  plaintiffs.^*  We  are  therefore  of 
opinion  that  the  defendant  is  not  liable  for  the  value  of  the  wheat  sued 
for.     *     *     * 


NATIONAL  NEWARK  BANKING  CO.  v.  DELAWARE, 
L.  &  W.  R.  CO. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1904.    70  N.  J.  Law,  774,  58  Atl. 
311,  CG  L.  R.  A.  .595,  103  Am.  St.  Rep.  825.) 

SwAYZE,  J.^''  This  is  an  action  of  trover.  As  finally  presented  to 
the  trial  court,  the  controversy  was  limited  to  eight  cars  of  grain, 
which  had  been  consigned  to  one  Archer,  trading  as  A.  E.  Howe  & 
Co.  Archer,  in  pursuance  of  a  practice  continued  for  several  years, 
had  surrendered  the  bills  of  lading  to  Remer,  freight  agent  of  the  de- 
fendant at  Newark,  prior  to  the  arrival  of  the  grain,  and  had  received 
(in  exchange  therefor  what  are  called  "certified  orders."  The  case 
turns  upon  the  validity  and  effect  of  these  certified  orders. 

They  were  in  the  following  form :  "Newark,  N.  J.,  Aug.  18th, 
1902.  Agent  D.  L.  and  W.  R.  R. :  On  arrival  of  car  oats  No.  12043 
or  its  transfer,  please  deliver  same  to  J.  R.  Bradner  &  Son  or  ourselves 
or  order,  on  presentation  of  this  order.  A.  E.  Howe  &  Co.  Freight 
Paid.  Invoice  No.  47143."  Upon  surrender  of  the  bill  of  lading,  the 
cashier  in  Remer's  office  stamped  across  the  face  of  the  order  the 
following  words :  "Car  to  be  delivered  on  this  order  same  as  B_.  of 
L.  B.  of  L.  taken  up  at  Newark.  John  Remer,  Agt.,  per  J.  H.  Bur- 
rell,  Cashier." 

Archer  had  contracted  to  sell  the  grain  in  advance  of  its  arrival,  and 
the  name  of  the  purchaser  was  inserted  in  the  order.  After  the  order 
was  stamped  by  Burrell,  Archer  drew  a  draft  on  the  purchaser,  and 
upon  these  drafts,  accompanied  by  the  certified  orders  indorsed  by 

3*  Compare  First  Nat.  Bk.  v.  No.  Pac.  Ry.  Co.,  2S  Wash.  439,  68  Pac.  965 
(1902). 

35  Parts  of  the  opinion  are  ouiitted. 


Ch.   3)  THE   COMPLETION    OF  THE   CARRIER'S    UNDERTAKING.  161 

Archer,  obtained  advances  of  money  from  the  bank.  The  practice 
of  issuing  these  certified  orders  in  Heu  of  the  bills  of  lading  arose 
from  the  fact  that  Archer  sold  grain  by  the  car  load  at  points  along  the 
line  of  the  railroad  between  Dover  and  Washington  and  Newark,  and 
in  order  to  avoid  having  the  grain  transported  through  to  Newark,  its 
original  destination,  the  bill  of  lading  was  surrendered,  and  the  car 
transferred,  formerly  at  Dover,  but  later  at  Washington,  and  sent  to 
the  station  at  which  it  was  to  be  delivered  to  the  customer  to  whom 
Archer  had  agreed  to  sell  it.    In  August,  1902,  Archer  absconded. 

The  eight  car  loads  of  grain  now  in  question  had  then  been  deliv- 
ered by  the  railroad  company  to  the  purchasers  from  Archer,  upon 
his  written  instructions.  The  bank  held  the  certified  orders,  and  de- 
manded delivery  of  the  grain,  with  which  demand  the  railroad  com- 
pany was  unable  to  comply.  The  terms  of  the  contracts  between  Arch- 
er and  the  purchasers  of  the  grain  do  not  appear,  but  in  each  case 
the  sale  was  of  grain  en  route,  and  the  drafts  drawn  upon  purchasers 
by  Archer  were  payable  upon  arrival  of  the  grain,  and  the  fair  infer- 
ence, in  the  absence  of  proof  to  the  contrary,  is  that  Archer  was  to 
deliver  the  grain  at  Newark.  The  contracts  of  sale  between  Archer 
and  the  purchasers  antedated  the  arrangement  made  by  Archer  with 
the  bank,  and  the  arrangement  with  the  bank  antedated  the  arrival 
of  the  grain.  A  verdict  was  directed  for  the  plaintift"  for  the  amount 
advanced  on  the  drafts.     *     *     * 

There  was  certainly  an  agreement  between  the  bank  and  Archer  by 
which  the  bank  obtained  a  present  right  in  the  grain.  Parke,  B.,  in 
Bryans  v.  Nix,  4  Meeson  &  W.  775,  at  page  790.  Whether  the  title 
of  the  bank  was  absolute,  or  by  way  of  pledge  or  mortgage,  the  ac- 
tion is  maintainable,  and  the  measure  of  damages,  whether  the  property 
was  special  or  general,  is  the  value  of  the  goods.  Luse  v.  Jones,  39 
N.  J.  Law,  707,  713. 

The  case  presents  this  situation :  A  consignee  sells  goods  in  ad- 
vance of  arrival,  and  gives  an  order  for  their  delivery,  which  is  known 
to  the  local  freight  agent  of  the  carrier,  and  subsequently  orders  the 
carrier  to  dehver  the  same  goods  to  another  person,  and  the  carrier 
complies  with  the  later  order.  *  *  *  The  position  of  the  bank  is 
not  merely  that  of  the  true  owner,  for  it  has  an  order  of  the  consignee 
for  delivery  of  the  grain,  and  there  can  be  no  doubt  that  the  carrier, 
having  in  its  possession  the  bill  of  lading,  if  it  had  not  already  de- 
livered the  grain,  must  deliver  upon  that  order. 

The  question  is  whether  the  carrier  is  protected  by  the  delivery  un- 
der the  later  order.  Although  the  duty  of  the  carrier  requires  a  de- 
livery to  the  true  owner  when  known,  it  can  hardly  be  disputed  that, 
in  the  absence  of  notice  of  a  third  person's  rights,  the  carrier  would  be 
justified  in  delivering  to  the  consignee,  who  is  prima  facie  entitled 
to  receive  the  goods;  and,  if  it  would  be  justified  in  delivering  to  the 
consignee,  it  must  "be  justified  in  delivering  on  the  consignee's  order. 
Green  Cabb. — 11 


1G2  THE  carrier's  undertaking.  (Part  2 

The  rights  of  the  bank  depend  upon  whether  the  certified  orders  were 
orders  for  deHvery  to  the  bank,  and  were  known  to  the  railroad  com- 
pany prior  to  the  dehvery  to  the  other  purchasers.  Those  orders,  when 
presented  to  Remer,  directed  a  dehvery  either  to  the  purchaser,  or  to 
Archer,  or  to  Archer's  order,  "on  presentation  of  this  order." 

The  very  fact  that  Archer  had  the  orders  stamped  \vith  the  words 
"Car  to  be  dehvered  on  this  order  same  as  B.  of  L.,"  and  took  them 
away  with  him,  was  notice  to  Remer  that  some  use  was  to  be  made  of 
the  orders,  other  than  merely  to  direct  a  delivery  by  the  railroad  com- 
pany. Had  such  been  the  only  purpose,  it  would  have  been  unneces- 
sary for  Archer  to  have  the  orders  certified  or  to  take  them  away  with 
him.  It  would  have  been  enough  to  leave  the  bills  of  lading  with 
the  company,  and  afterwards  send  such  instructions  for  delivery  as 
Archer  actually  gave  in  favor  of  the  subsequent  purchasers.  By  cer- 
tifying these  orders,  the  agent  virtually  accepted  them.  If  he  was  au- 
thorized to  accept  for  the  company,  the  company  became  bound  by  the 
acceptance.  If  he  was  without  such  authority,  still  the  terms  of  the 
orders  gave  him  notice  that  the  grain  was  no  longer  deliverable  mere- 
ly to  the  consignee  or  upon  his  order,  but  was  deliverable  only  upon 
the  presentation  of  the  certified  orders.  To  that  condition  the  con- 
signee had  himself  consented,  and  the  railroad  company  would  have 
been  entirely  justified  in  refusing  delivery  on  any  other  terms. 

It  is  true  the  certified  orders  did  not  name  the  persons  who  were  to 
receive  the  goods,  but  they  described  them  in  such  a  way  that  no  mis- 
take could  be  made.  The  orders  amounted  to  saying:  "Deliver  the 
grain  to  the  man  who  presents  this  order;  it  will  be  either  Bradner 
[or  any  other  purchaser],  ourselves,  or  some  one  with  an  order  from 
us."  The  freight  agent,  when  he  indorsed  the  order,  had  notice  that 
the  grain  might  not  be  deliverable  to  Archer  upon  its  arrival ;  he  also 
had  notice  that  it  should  be  delivered  to  some  one  who  would  be  iden- 
tified by  the  possession  of  the  certified  order.  Such  a  method  of  iden- 
tification was  as  safe  for  the  railroad  company  as  an  identification 
by  name.  The  agent  knew  that  the  person  who  would  be  entitled  to 
receive  the  grain  must  answer  two  descriptions:  (1)  He  must  have 
the  certified  order;  (2)  he  must  be  either  the  purchaser  named  in  the 
order,  the  consignee  himself,  or  some  one  with  the  order  of  the  con- 
signee. The  bank  complied  with  both  terms  of  the  description ;  it  had 
the  certified  order,  and  the  indorsement  of  Archer  thereon. 

Notice  to  the  freight  agent  was  notice  to  the  railroad  company.  It 
was  notice  to  the  very  person  who  was  charged  by  the  railroad  com- 
pany with  the  duty  of  delivering  the  grain.  The  bank's  right  does 
not  rest  solely  upon  a  contract  made  by  the  freight  agent  to  deliver  the 
grain  to  the  holder  of  the  certified  order.  Its  right  depends  upon  the 
facts  that  it  was  the  true  owner  of  the  grain,  and  the  holder  of  the 
token  which  the  consignee  had  notified  the  railroad  company  was  to 
determine  the  question  to  whom  the  delivery  should  be  made.    *    *    * 


Ch.  3)  THE   COMPLETION    OF  THE   CARRIER'S   UNDERTAKING.  163 

These  considerations  lead  to  an  affirmance  of  the  judgment. 

We  have  not  found  it  necessary  to  determine  whether  a  certified 
order  issued  in  exchange  for  a  bill  of  lading,  as  yet  unaccomplished, 
is  not  in  effect  a  substituted  bill  of  lading,  as  far  as  the  same  is  a  sym- 
bol of  the  property  and  transferable  by  indorsement,  nor  whether  the 
course  of  business  of  the  railroad  company  did  not  require  an  infer- 
ence of  Remer's  authority  to  issue  such  a  document  of  title. 

For  affirmance — The  ChancelIvOR,  Fort,  Hendrickson,  Pitney, 

SWAYZE,  VrEDENBURG. 

For  reversal — Dixon,  Garrison,  Vroom,  Green. ^® 


SAMUEL  V.  CHENEY. 

(Supreme  Judicial  Court  of  Massachusetts,  18S3.    135  Mass.  278,  46  Am.  Rep. 

467.) 

Tort,  against  a  common  carrier,  for  the  conversion  of  a  quantity 
of  cigars.  At  the  trial  in  the  superior  court,  before  Colburn,  J., 
the  jury  returned  a  verdict  for  the  defendant;  and  the  plaintiff  al- 
leged exceptions.     The  facts  appear  in  the  opinion. 

Morton,  C.  J.  The  principal  facts  in  this  case,  regarded  in  the 
light  most  favorable  to  the  plaintiff,  are  as  follows : 

In  June,  1881,  a  swindler,  assuming  the  name  of  A.  Swannick, 
sent  a  letter  to  the  plaintiff  asking  for  a  price  Hst  of  cigars,  and 
giving  his  address  as  "A.  Swannick,  P.  O.  Box  1595,  Saratoga 
Springs,  N.  Y."  The  plaintiff  replied,  addressing  his  letter  accord- 
ing to  this  direction.  The  swindler  then  sent  another  letter  order- 
ing a  quantity  of  cigars.  The  plaintiff  forwarded  the  cigars  by  the 
defendant,  who  is  a  common  carrier,  and  at  the  same  time  sent  a 
letter  to  the  swindler,  addressed  "A.  Swannick,  Esq.,  P.  O.  Box  1595, 
Saratoga  Springs,  N.  Y.,"  notifying  him  that  he  had  so  forwarded 
the  goods. 

There  was  at  the  time  in  Saratoga  Springs  a  reputable  dealer  in 
groceries,  liquors,  and  cigars,  named  Arthur  Swannick,  who  had  his 
shop  at  the  corner  of  Ash  street  and  Franklin  street,  and  who  issued 

36  See.  also.  The  Thames.  Fed.  Cas.  No.  l.S.Sr.S  (l.^^O)  :  Td..  14  Wall.  0'<.  20  Iv 
Ed  804  (1871)  •  Gardeu  Grove  Bank  v.  Humeston,  etc.,  Co.,  67  Iowa,  520,  25 
N  'w  761  a885)  •  Nat.  Bk.  of  Chester  v.  Atlanta,  etc.,  Ry.  Co.,  25  S.  C.  216 
(1886)'-   Western,  etc.,  R.  Co.  v.  Ohio  Co..  107  Ga.  512.  33  S.  K  821  (1889). 

As  to  the  liability  of  a  carrier  where  goods  of  different  owners  have  be- 
come mixed,  so  that  he  cannot  tell  them  apart,  see  Bradley  v.  Dunipace.  1  H. 
&  C  5*^1  (1861)  As  to  his  liability  where  no  one  can  tell  them  apart,  see 
Spence"v.  UnionMarine  Ins.  Co..  L.  R.  3  C.  P.  427  (1868).  As  to  his  duty  where 
he  has  given  bills  of  lading  for  undivided  portions  of  cargo  shipped  in  bulk, 
a  part  of  which  has  suffered  damage,  see  Grange  &  Co.  v.  Taylor,  20  T.  L.  R. 
386  (1904). 


164  THE  carrier's  undertaking.  (Part  2 

his  cards  and  held  out  his  name  on  his  signs  and  otherwise  as  "A. 
Swannick."  He  was  in  good  credit,  and  was  so  reported  in  the 
books  of  E.  Russell  &  Co.,  a  well-known  mercantile  agency,  of  whom 
the  plaintiff  made  inquiries  before  sending  the  goods.  No  other  A. 
Swannick  appeared  in  the  Saratoga  Directory  for  1881,  or  was  known 
to  said  mercantile  agency.  But  in  June,  1881,  a  man  hired  a  shop 
at  No.  16  Congress  street,  Saratoga  Springs,  under  the  name  of  A. 
Swannick,  and  also  hired  a  box,  numbered  1595,  in  the  post  office, 
and  used  printed  letter  heads  with  his  name  printed  as  "A.  Swannick, 
P.  O.  Box  1595."  This  man  wrote  the  letters  to  the  plaintiff  above 
spoken  of,  and  received  the  answers  sent  by  the  plaintiff.  He  soon 
after  disappeared. 

The  plaintiff  supposed  that  the  letters  were  written  by,  and  that 
he  was  dealing  with,  Arthur  Swannick.  He  sent  the  goods  by  the 
defendant,  the  packages  being  directed,  "A.  Swannick,  Saratoga 
Springs,  N.  Y." 

The  defendant  carried  the  packages  safely  to  Saratoga  Springs. 
On  July  1st  the  defendant,  by  his  agent,  carried  a  package  of  cigars 
directed  to  A.  Swannick  to  said  Arthur  Swannick,  who  refused  to 
receive  it  on  the  ground  that  he  had  ordered  no  cigars.  Afterwards, 
on  the  arrival  of  the  packages,  the  value  of  which  is  sought  to  be  re- 
covered in  this  suit,  the  defendant  carried  the  same  to  the  shop  No. 
16  Congress  street,  and  delivered  them  to  the  person  appearing  to 
be  the  occupant  of  the  shop,  and  took  receipts  signed  by  him  as  "A. 
Swannick." 

We  assume  that  his  real  name  was  not  A.  Swannick,  but  that  he 
fraudulently  assumed  this  name  in  Saratoga  Springs  and  in  his  deal- 
ings with  the  plaintiff. 

The  question  whether,  under  these  circumstances,  the  property  in 
the  goods  passed  to  the  swindler,  so  that  a  bona  fide  purchaser  could 
hold  them  against  the  plaintiff',  is  one  not  free  from  difficulty,  and 
upon  which  there  are  conflicting  decisions.  The  recent  case  of 
Cundy  v.  Lindsay,  3  App.  Cas.  459,  is  similar  to  the  case  at  bar  in 
many  of  its  features;  and  it  w^as  there  held  that  there  was  no  sale, 
that  the  property  did  not  pass  to  the  swindler,  and  therefore  that  the 
plaintiffs  could  recover  its  value  of  an  innocent   purchaser.^ ^     That 

S7  In  this  case,  Lord  Cairns,  after  stating  the  facts,  said:  "If  that  is  so, 
what  is  the  consequence?  It  is  that  Blenkarn — the  dishonest  man,  as  I  call 
him — was  acting  here  just  in  the  same  way  as  if  he  had  forged  the  signature 
of  Blenliiron  &  Co.,  the  respectable  firm,  to  the  applications  for  goods,  and  as 
if,  when,  in  return,  the  goods  were  forwarded  and  letters  were  sent,  accom- 
panying them,  he  had  intercepted  the  goods  and  intercepted  the  letters,  and 
had  taken  possession  of  the  goods,  and  of  the  letters  which  were  addressed 
to,  and  intended  for,  not  himself,  but  the  firm  of  Blenkiron  &  Co.  Now,  my 
Lords,  stating  the  matter  shortly  in  that  way,  I  ask  the  question:  How  is  it 
possible  to  imagine  that  in  that  state  of  things  any  contract  could  have  arisen 
between  the  respondents  and  Blenkarn,  the  dishonest  man?  Of  him  they  knew 
nothing,  and  of  him  they  never  thought.    With  him  they  never  intended  to  deal. 


Ch.  3)  THE   COMPLETION    OF  THE   CARRIER'S   UNDERTAKING.  165 

this  case  is  very  near  the  line  is  shown  by  the  fact  that  such  eminent 
judges  as  Blackburn  and  Mellor  differed  from  the  final  decision  of 
the  House  of  Lords.    Lindsay  v.  Cundy,  1  Q.  B.  D.  348. 

But  it  is  not  necessary  to  decide  this  question,  because  the  liability 
of  the  defendant  as  a  common  carrier  does  not  necessarily  turn  upon 
it.  The  contract  of-  the  carrier  is  not  that  he  will  ascertain  who  is 
the  owner  of  the  goods  and  deliver  them  to  him,  but  that  he  will 
deliver  the  goods  according  to  the  directions.  If  a  man  sells  goods 
to  A.,  and  by  mistake  directs  them  to  B.,  the  carrier's  duty  is  performed 
if  he  delivers  them  fo  B.,  although  the  unexpressed  intention  of  the 
forwarder  was  that  they  siiould  be  delivered  to  A. 

If,  at  the  time  of  this  transaction,  the  man  who  was  in  correspon- 
dence with  the  plaintiff  had  been  the  only  man  in  Saratoga  Springs 
known  as,  or  who  called  himself,  A.  Swannick,  it  cannot  be  doubted 
that  it  would  have  been  the  defendant's  duty  to  deliver  the  goods  to 
him  according  to  the  direction,  although  he  was  an  impostor,  who 
by  fraud  induced  the  plaintiff  to  send  the  goods  to  him.  Dunbar  v. 
Boston  &  Providence  Railroad,  110  Mass.  26,  14  Am.  Rep.  576.  The 
fact  that  there  were  two  bearing  the  name  made  it  the  duty  of  the 
defendant  to  ascertain  which  of  the  two  was  the  one  to  whom  the 
plaintiff  sent  the  goods. 

Suppose,  upon  the  arrival  of  the  goods  in  Saratoga  Springs,  the 
impostor  had  appeared  and  claimed  them;  to  the  demand  of  the  de- 
fendant upon  him  to  show  that  he  was  the  man  to  whom  they  were 
sent,  he  replies,  "True,  there  is  another  A.  Swannick  here,  but  he 
has  nothing  to  do  with  this  matter;  I  am  the  one  who  ordered  and 
purchased  the  goods;  here  is  the  bill  of  the  goods,  and  here  is  the 
letter  notifying  me  of  their  consignment  to  me,  addressed  to  me  at 
my  P.  O.  'Box,  1595."  The  defendant  would  be  justified  in  deliver- 
ing the  goods  to  him  whether  he  was  the  owner  or  not,  because  he 
had  ascertained  that  he  was  the  person  to  whom  the  plaintiff  had 
sent  them.  It  is  true  the  defendant  did  not  make  these  inquiries  in 
detail;  but  if,  by  a  rapid  judgment,  often  necessary  in  carrying  on 
a  large  business,  he  became  correctly  satisfied  that  the  man  to  whom 
he  made  the  delivery  was  the  man  to  whom  the  plaintiff  sent  the 
goods,  his  rights  and  liabilities  are  the  same  as  if  he  had  pursued  the 
inquiry  more  minutely. 

The  plaintiff  contends  that  he  intended  to  send  the  goods  to  Arthur 
Swannick.  It  is  equally  true  that  he  intended  to  send  them  to  the 
person  with  whom  he  was  in  correspondence.  We  think  the  more 
correct  statement  is,  that  he  intended  to  send  them  to  the  man  who 
ordered  and  agreed  to  pay  for  them,  supposing,  erroneously,  that  he 
was  Arthur  Swannick.    It  seems  to  us  that  the  defendant,  in  answer 

Their  minds  never,  even  for  an  instant  of  time,  rested  upon  him,  and  as  be- 
tween him  and  them  there  was  no  consensus  of  mind  which  could  lead  to  any 
agreement  or  any  contract  whatever." 


166  THE  carrier's  undertaking.  (Part  2 

to  the  plaintiff's  claim,  may  well  say,  we  have  delivered  the  goods 
intrusted  to  us  according  to  your  directions,  to  the  man  to  whom  you 
sent  them,  and  who,  as  we  were  induced  to  believe  by  your  acts  in 
dealing  with  him,  was  the  man  to  whom  you  intended  to  send  them ; 
we  are  guilty  of  no  fault  or  negligence. 

The  case  at  bar  is  in  some  respects  similar  to  the  case  of  M'Kean 
V.  IMcIvor,  L.  R.  6  Ex.  36.  There  the  plaintiffs,  induced  by  a  ficti- 
tious order  sent  to  them  by  one  Heddell,  an  agent  of  theirs  to  procure 
orders,  sent  goods  by  the  defendants,  who  were  carriers,  addressed 
to  ''C.  Tait  &  Co.,  71  George  Street,  Glasgow."  There  was  no  such 
firm  as  C.  Tait  &  Co.,  but  Heddell  had  made  arrangements  to  receive 
the  goods,  at  No.  71  George  street.  Upon  the  arrival  of  the  goods, 
the  defendants,  in  the  usual  course  of  business,  sent  a  notice  to  71 
George  street  for  the  consignee  to  call  for  the  goods,  the  notice  say- 
ing that  it  ought  to  be  indorsed  so  as  to  operate  as  a  delivery  order. 
Heddell  indorsed  the  notice  in  the  name  of  "C.  Tait  &  Co.,"  and  sent 
it  to  the  defendants  by  a  carter,  to  whom  the  goods  were  delivered. 
It  was  held  that  the  defendants  were  not  liable,  upon  the  ground  that 
no  negligence  was  shown,  and  that,  having  delivered  the  goods  ac- 
cording to  the  directions  of  the  plaintiff,  they  had  performed  their 
duty ;  and  the  fact  that  they  delivered  to  some  person  to  whom  the 
plaintiff  did  not  intend  delivery  to  be  made,  was  not  sufficient  to 
make  them  liable  for  a  conversion.  See  Heugh  v.  London  &  North- 
western Railroad,  L.  R.  5  Ex.  51 ;  Clough  v.  London  &  Northwestern 
Railroad,  L.  R.  7  Ex.  26. 

The  cases  of  Winslow  v.  Vermont  &  Massachusetts  Railroad,  43 
Vt.  700,  1  Am.  Rep.  365,  American  Express  Co.  v.  Fletcher,  25  Ind. 
492,  and  Price  v.  Oswego  &  Syracuse  Railway,  50  N.  Y.  213,-10  Am. 
Rep.  475,  differ  widely  in  their  facts  from  the  case  at  bar,  and  are 
distinguishable  from  it. 

Upon  the  facts  of  this  case,  we  are  of  opinion  that  the  defendant 
is  not  liable,  in  the  absence  of  any  proof  of  negligence;  and  there- 
fore that  the  rulings  at  the  trial  were  sufficiently  favorable  to  the 
plaintiff.^^ 

Exceptions  overruled.^® 

3  8  The  plaintifif  requested  the  judge  to  rule  that  on  the  facts,  which  were 
undisputed  and  agreed,  he  was  entitled  to  a  verdict.  The  judge  refused  so  to 
rule.  The  plaintiff  then  requested  the  judge  to  rule  that,  if  the  jury  believed 
that  in  shipping  these  goods  the  plaintiff  intended  as  the  consignee  A.  Swan- 
nick,  the  person  who  was  well  rated  in  the  commercial  agency  books,  and  that 

a»  Ace.  Bush  v.  St.  Louis,  etc.,  Ry.  Co.,  3  Mo.  App.  62  (1870) ;  The  Drew 
(D.  O.)  15  Fed.  826  (mS3) :  Wilson  v.  Adams  Ex.  Co.,  27  Mo.  App.  360  (18.S7). 
Compare  Price  v.  Oswego,  etc.,  R.  Co.,  50  N.  Y.  213,  10  Am.  Rep.  475  (1872), 
stated  post,  p.  170;  also  Sword  v.  Young,  89  Tenn.  126,  14  S.  W.  481,  604  (1890), 
swindlers  using  fictitious  names ;  Oskamp  v.  So.  Ex.  Co.,  61  Ohio  St.  341,  56 
N.  E.  13  (1899).  A  carrier  has  been  held  liable  for  delivering  to  a  consignee 
with  reason  to  know  him  a  swindler.  Wilson  v.  Adams  Ex.  Co..  43  Mo.  App. 
659  (1891) ;  Pacific  Ex.  Co.  v.  Critzer  (Tex.  Civ.  App.)  42  S.  W.  1017  (1897). 
And  see  Southern  Express  Co.  v.  Dickson,  Oi  U.  S.  549,  24  L.  Ed.  285  (1876). 


Ch.  3)  THE   COMPLETION    OF  THE   CARRIER'S    UNDERTAKING.  167 


PACIFIC  EXPRESS  CO.  v.  SHEARER. 

(Supreme  Court  of  Illinois,  189G.    160  111.  215,  43  N.  E.  810,  37  L.  R.  A.  177,  52 

Am.  St.  Rep.  324.) 

This  was  an  action  for  misdelivery  of  a  package  containing  $4,000. 
The  plaintiffs  did  business  at  the  stockyards  in  Chicago.  Th?y  had 
had  dealings  with  one  J.  C.  Stubblefield,  a  traveling  cattle  buyer,  and 
from  time  to  time  at  his  request  had  advanced  him  money  by  draft, 
letter  of  credit,  or  express. 

Plaintiff's  received  the  following  telegram : 

"Chetopa,  Kan..  April  22,  1889. 
"To  W.  W.  Shearer  &  Co.,  Union  Stockyards,  Chicago : 

"Express  me  $4,000  to-day,  Chetopa.    Answer. 

"J.  C.  Stubblefield." 

The  telegram  was  not  sent  by  the  Stubblefield  whom  plaintiff's  knew, 
but  by  a  swindler  who  had  arrived  at  Chetopa  the  day  before  upon 
the  same  train  with  Stubblefield,  and  who,  under  the  name  of  J.  C. 
Stubblefield  was  stopping  there  at  a  hotel. 

Plaintiff's  answered  as  follows : 

"Union  Stockyards,  Chicago,  111.,  22. 

"To  J.  C.  Stubblefield : 

"Sent  monev  as  ordered  to-day.  Wire  me  full  particulars  on  receipt 
of  this.  '  W.  W.  Shearer." 

This  was  delivered  to  the  swindler,  and  he  replied : 

"Chetopa,  Kan.,  23. 

"To  W.  W.  Shearer  &  Co. : 

"Bought  240  corn  fed  Texas,  top  of  300,  at  $20  a  head. 

"J.  C.  Stubblefield." 

April  24th  the  swindler  called  at  the  ofiice  of  the  defendant  express 
company,  introduced  himself  as  J.  C.  Stubblefield,  and  asked  for  a 
package  addressed  to  him.  informing  the  agent  correctly  that  it  was 
from  Shearer  &  Co.  and  contained  $4,000,  and  in  response  to  a  request 
that  he  identify  himself,  producing  the  telegram  he  had  received  and 
two  accounts  of  sales  showing  transactions  between  J.  C.  Stubblefield 
and  Shearer  &  Co.    He  also  brought  in  the  landlord  of  his  hotel,  who 

that  intent  was  properly  expressed  in  the  address  on  the  packages  and  that 
the  name  of  the  person  to  whom  delivery  was  in  fact  made  was  not  A  Swan- 
nick  they  must  find  a  verdict  for  the  plaintiff.  The  judge  refused  so  to  rule 
and  'instructed  the  jury  that,  the  intent  of  the  plaintiff  benig  uneommumcated 
to  the  defendant,  except  so  far  as  expressed  in  the  address  on  the  packages,  was 
of  itself  of  no  importance ;  and  that  if  the  delivery  was  made  to  a  person  who 
was  known  at  Saratoga  Springs  by  that  name  and  no  other,  that  was  enough, 
To  far Tthe  queSon%f  nami  affected  the  legal  result.  The  judge  then  left 
the  single  question  to  the  jury,  as  to  whether  the  defendant  acted  neg  igently 
in  mSng  the  delivery  he  did.  instructing  them  further  that,  although  there 
was  no  Question  that  there  was  a  misdelivery  of  the  goods  in  suit,  the  only 
question  was,  whether  the  defendant  was  guilty  of  negligence  in  making  this 
misdelivery. — Rep. 


1G8  THE  carrier's  UNDERTAKI^'G.  (Part  2 

told  the  agent  that  the  swindler  was  known  as  J.  C.  Stubblefield,  was 
making  a  trade  for  cattle  west  of  the  town,  and  had,  as  was  true,  or- 
dered cattle  cars  to  be  in  readiness  for  a  shipment  to  be  made  that 
day,  and  that  the  cars  were  ready.  The  agent  then  delivered  the  pack- 
age to  the  swindler. 

The  jury  were  instructed,  in  effect,  that,  unless  the  person  to  whom 
delivery  was  made  was  in  fact  J.  C.  Stubblefield,  the  defendant  was 
liable,  though  it  had  used  reasonable  diligence  to  ascertain  his  identity, 
and  though  he  was  the  person  in  resjx)nse  to  whose  telegram  the 
package  was  sent.     From  a  judgment  for  plaintiff,  defendant  appeals. 

Craig,  C.  J.*"  *  *  *  It  is  apparent  from  the  record  that  the 
package  was  delivered  to  the  person  in  response  to  whose  telegraphic 
order  appellees  sent  the  package,  appellees  at  the  time  believing  such 
person  to  be  J.  C.  Stubblefield ;  and  it  is,  no  doubt,  also  true  that,  at  the 
time  of  delivery,  the  agent  of  appellant  ascertained  that  the  person 
who  demanded  the  package,  and  to  whom  it  was  delivered,  was  the 
person  in  response  to  whose  order  appellees  sent  the  same,  and  that 
appellees  treated  the  order  for  the  money  as  the  order  of  J.  C.  Stub- 
blefield; and  it  may  also  be  true  that  the  agent  used  reasonable  dili- 
gence to  ascertain  the  identity  of  the  person  who  demanded  the  pack- 
age before  it  was  delivered.  Would  these  facts  relieve  the  carrier  of 
liability  for  delivering  the  package  to  a  person  to  whom  it  was  not 
consigned  ? 

In  Hutchinson  on  Carriers,  §  344,  the  rule  with  reference  to  deliv- 
ery is  stated  as  follows :  "No  circumstance  of  fraud,  imposition,  or 
mistake  will  excuse  the  common  carrier  from  responsibility  for  a 
delivery  to  the  wrong  person.  The  law  exacts  of  him  absolute  cer- 
tainty that  the  person  to  whom  the  delivery  is  made  is  the  party  right- 
fully entitled  to  the  goods,  and  puts  upon  him  the  entire  risk  of  mis- 
takes in  this  respect,  no  matter  from  what  cause  occasioned,  however 
justifiable  the  delivery  may  seem  to  have  been,  or  however  satisfactory 
the  circumstances  or  proof  of  identity  may  have  been  to  his  mind,  and 
no  excuse  has  ever  been  allowed  for  a  delivery  to  a  person  for  whom 
the  goods  were  not  directed  or  consigned."     *     *     * 

In  American,  etc.,  Exp.  Co.  v.  Milk,  73  111.  224,  an  action  was 
brought  against  the  company  to  recover  for  a  package  of  money  de- 
livered to  the  company  in  Du  Page  county,  to  be  forwarded  to  Kan- 
kakee. When  the  package  arrived  at  its  destination,  the  agent  of  the 
company  delivered  it  to  a  certain  person  on  a  forged  order  of  the 
consignee.  It  was  held  that  it  is  the  duty  of  an  express  company, 
upon  receiving  a  package  of  money  to  be  forwarded,  to  safely  carry 
and  deliver  it  to  the  consignee,  and  the  only  way  it  can  relieve  itself 
from  responsibility  as  a  common  carrier  is  by  showing  performance, 
or  its  prevention  by  the  act  of  God  or  the  public  enemy,  and  that  it  is 

40    The  statement  of  facts  has  been  rewritten,  and.  parts  of  the  opinion  omit- 
ted.   A  dissenting  opinion  by  Phillips,  J.,  is  also  omitted. 


Ch.  3)  THE   COMPLETION    OF  THE   CARRIER'S   UNDERTAKING.  169 

not  discharged  by  delivering  the  same  to  another  on  a  forged  order 
of  the  owner.  The  same  doctrine  is  announced  in  American,  etc., 
Exp.  Co.  V.  Wolf,  79  111.  430. 

The  decisions  of  this  court  are  believed  to  be  in  harmony  with  the 
law  as  declared  in  the  text-books  and  as  announced  by  a  large  majority 
of  the  courts  of  last  resort  of  the  country.  The  law  requires  at  the 
hands  of  the  carrier  absolute  certainty  that  the  person  to  whom  the 
delivery  is  made  is  the  real  person  to  whom  the  goods  have  been  con- 
signed, and  the  carrier  cannot  escape  liability  on  the  ground  that  de- 
ception, imposition,  or  fraud  may  have  been  resorted  to  by  an  im- 
postor to  obtain  from  the  agent  of  the  carrier  the  goods  intrusted  to 
its  care.*^  The  business  interests  of  the  country,  as  well  as  the  rights 
of  a  consignor  who  pays  a  liberal  price  for  the  transmission  of  his 
property,  alike  demand  that  the  carrier  should  be  held  to  a  strict  ac- 
countability. 

There  are  a  number  of  cases  in  the  books  where  a  delivery  of 
goods  has  been  made  by  the  carrier  to  the  wrong  person  under  cir- 
cumstances not  unlike  the  facts  under  which  the  money  was  delivered 
here,  where  the  carrier  was  held  liable.  In  American  Exp.  Co.  v. 
Fletcher,  25  Ind.  493,  a  person  pretending  to  be  J.  O.  Riley  called  on 
the  telegraph  operator  and  agent  of  the  express  company  and  sent  a 
telegram  to  plaintiff  requesting  a  certain  sum  of  money  by  express. 
In  a  short  time,  the  same  agent  received  by  express  a  package  of 
money  addressed  to  J.  O.  Riley.  The  person  who  had  sent  the  tele- 
gram for  the  money  called  on  the  agent  and  operator  and  demanded 
the  package  of  money,  which  was  delivered  over  to  him.  Subse- 
quently, it  turned  out  that  the  person  who  sent  the  telegram  and  to 
whom  the  money  was  delivered  was  not  J.  O.  Riley,  and  the  express 
company  was  held  liable  for  the  money.  In  the  decision  of  the  case, 
the  court,  among  other  things,  said :  "The  express  undertaking  of  the 
appellant  was  to  deliver  the  package  to  J.  O.  Riley  in  person.     The 

41  Ace.  Cavallaro  v.  Tex.  &  Pae.  Ry.  Co.,  110  Cal.  348,  42  Pac.  918,  52  Am. 
St.  Rep.  94  (1895).  delivery  to  imiaersonator  of  consignee ;  Sinsbeimer  v.  N.  Y. 
Cent.  R.  Co..  21  Misc.  Rep.  45,  46  N.  Y.  Supp.  887  (1897),  to  finder  of  receipt; 
Adrian  Knitting  Co.  v.  Wabasli  Ry.  Co.,  145  Micli.  323,  108  N.  W.  700  (1906), 
to  consignee's  former  partner  hiolding  bill  of  lading;  So.  Ex.  Co.  v.  B.  R.  Elec. 
Co.,  12G  Ga.  472.  55  S.  E.  254  (1906) ;  Cane  Belt  R.  Co.  v.  Peden.  etc.,  Co.,  45 
Tex.  Civ.  App.  630,  101  S.  W.  528  (1907),  to  consignee  company's  director  hold- 
ing bill  of  lading. 

Where  a  consignee  cannot  be  found,  or  refuses  to  accept,  the  carrier,  acting 
as  agent  for  the  owner,  may  store  the  goods  with  a  warehouseman  as  bailee 
for  the  owner,  and  is  not  liable  thereafter  even  for  the  warehouseman's  neg- 
ligence, at  least  where  the  owner  has  notice.  Manhattan  Shoe  Co.  v.  C,  B. 
&  Q.  R.  Co.,  9  App.  Div.  172,  41  N.  Y.  Supp.  83  (1896). 

Where  a  consignee  cannot  be  found,  and  the  carrier  holds  the  goods  in  his 
own  warehouse  for  the  owner's  benefit,  whether  he  is  liable  for  a  misdelivery 
without  negligence,  see  Heugh  v.  London  &  N.  W.  Ry.  Co.,  L.  R,  5  Ex.  51  (1870) ; 
Burnell  v.  N.  Y.  Cent.  R.  Co..  45  N.  Y.  184,  6  Am.  Rep.  61  (1871) ;  Lake  Shore 
R.  Co.  V.  Hodapp,  83  Pa.  22  (1877) :  Security  Trust  Co.  v.  Wells,  Fargo  &  Co., 
80  N.  Y.  Supp.  830,  81  App.  Div.  426  (1903),  aflirmed  178  N.  Y.  620,  70  N.  E. 
1109  (1904) ;  6  Cyc.  473,  note  ,52. 


170  THE  carrier's  UNDERTAKING.  (Part  2 

Utmost  that  the  answer  alleged  was,  that  the  delivery  was  to  another 
person  who  pretended  to  be  Riley.  He  identified  himself  merely  as 
having  so  pretended  on  the  day  before,  by  transmitting  a  telegram  in 
Riley's  name.  This  was  no  better  evidence  that  his  name  was  Riley 
than  if  he  had  so  stated  to  the  express  agent  or  any  third  person. 
That  the  package  had  been  sent  in  response  to  a  telegram  purporting 
to  be  from  J.  O.  Riley  simply  proved  that  Riley  had  credit,  or  some 
arrangement  with  the  plaintiff  to  furnish  him  money,  and  that  the 
package  was  sent  to  him — not  that  he  was  the  person  who  sent  the 
dispatch  or  that  anyone  pretending  to  be  him  was  to  receive  it." 

Southern  Express  Co.  v.  Van  Meter,  17  Fla.  783,  35  Am.  Rep.  107, 
is  another  case  in  point.  There  an  instruction  had  been  given  which 
was,  substantially,  that  the  express  company,  without  reference  to 
the  party  who  may  have  ordered  the  money  sent  or  who  may  have 
telegraphed  for  it,  was  bound  to  deliver  to  the  plaintiff  if  it  was  sent 
to  him  and  he  was  the  owner.  On  behalf  of  the  express  company, 
it  was  insisted  that  the  instruction  did  not  announce  a  correct  rule  of 
law,  but  the  court  held  otherwise,  and  said :  "This  instruction,  viewed 
in  reference  to  the  testimony,  is  nothing  more  than  that  a  forged  tele- 
gram is  no  excuse  for  the  delivery  to  a  party  not  the  owner  and  to 
whom  it  was  the  contract  of  the  carrier  to  deliver  it.  *  *  *  Not- 
withstanding the  forged  telegram,  this  carrier,  in  making  a  personal 
delivery,  was  bound  by  law  to  deliver  to  the  person  to  whom  the 
package  was  addressed,  he  being  its  true  owner.  It  is  the  settled 
doctrine  of  England  and  this  country  that  there  must  be  an  actual 
delivery  to  the  proper  person,  *  *  *  and  in  no  other  way  can 
the  carrier  discharge  his  responsibility,  except  by  proving  he  has 
performed  such  engagement  or  has  been  excused  from  performance, 
or  been  prevented  by  the  act  of  God  or  a  public  enemy."  See,  also, 
American  Exp.  Co.  v.  Stack,  29  Ind.  27. 

Price  V.  Oswego,  etc.,  Ry.  Co.,  50  N.  Y.  213,  10  Am.  Rep.  475,  is 
an  interesting  case  on  the  question.  There  the  person  who  ordered 
the  goods  in  the  name  of  a  fictitious  firm,  S.  H.  Wilson  &  Co.,  was 
the  same  person  who  received  and  receipted  therefor  in  the  name  of 
such  fictitious  firm.  It  seems  that  the  referee  found  "that  the  delivery 
by  the  carrier  was  to  the  same  person  who  made  the  order  for  the 
goods,"  and  he  also  found,  as  a  conclusion  of  law,  that  the  delivery 
to  such  person,  without  notice  of  fraud,  relieved  the  carrier  of  lia- 
bility. But  the  court  of  appeals  reversed  the  judgment  and  held  the 
carrier  liable,  and,  among  other  things,  said:  "It  would  hardly  be 
claimed,  in  case  there  had  been  a  firm  doing  business  at  Oswego  un- 
der the  name  of  S.  H.  Wilson  &  Co.,  a  swindler  would  make  himself 
consignee  of  goods,  or  acquire  any  right  whatever  thereto,  which 
were  in  fact  consigned  to  such  firm,  simply  by  showing  that  he  had 
forged  an  order  in  the  name  of  the  firm  directing  such  consignment. 
If  he  would  not  thereby  acquire  any  right  to  the  goods,  delivery  to 


Ch,  3)  THP]   COMPLETION    OF  THE   CARRIER'S    UNDERTAKING.  171 

him  would  not  protect  the  carrier  any  more  than  if  made  to  any  other 
person.'' 

Duff  V.  Budd,  3  Brod.  &  B.  177,  7  Eng.  Com.  L.  399,  is  also  a  case 
in  point.  There  the  person  who  received  the  goods  was  the  same  who 
ordered  them  in  a  fictitious  name,  but  it  was  held  the  carrier  had  no 
authority  to  deliver  them  to  such  person,  and  the  owner  was  entitled 
to  recover  of  the  carrier. 

Dunbar  v.  Boston,  etc.,  R.  Corp.,  110  Mass.  26,  14  Am.  Rep.  576, 
and  Edmunds  v.  Merchants',  etc.,  Co.,  135  Mass.  283,  are  relied  upon 
by  the  appellant  to  sustain  the  delivery  of  the  package.  In  the  first 
case  cited,  one  John  F.  Gorman  called  on  Dunbar,  in  Boston,  and 
represented  that  he  was  John  H.  Young,  of  Providence,  Rhode  Is- 
land. He  purchased  on  credit  a  quantity  of  goods,  and  had  them 
consigned  to  John  H.  Young,  Providence,  Rhode  Island.  Upon  the 
arrival  of  the  goods  in  Providence,  Gorman,  who  had  made  the  pur- 
chase in  person,  presented  himself  to  the  carrier,  and,  as  the  agent  of 
Young,  demanded  the  goods.  The  goods  having  been  delivered  to 
him,  Dunbar  sued  the  carrier  for  a  misdelivery,  but  the  court  held 
that  the  action  would  not  lie.  The  decision,  as  we  understand  it,  is 
predicated  on  the  ground  that  the  goods  were  consigned  and  delivered 
to  the  person  who  actually,  in  person,  made  the  purchase  under  an 
assumed  name.  In  the  other  case  it  appeared  that  "a  swindler,  claim- 
ing to  be  Edward  Pape,  of  Dayton,  Ohio,  purchased  goods  from  plain- 
tiff by  personal  negotiation.  There  was  a  man  whose  true  name  was 
Edward  Pape,  in  Dayton,  Ohio — a  reputable  business  man,  whom  the 
plaintiff  supposed  the  swindler  to  be.  The  goods  were  delivered  by 
plaintiff  to  the  defendant,  to  be  carried  to  Dayton  and  delivered  to 
Edward  Pape.  The  defendant  delivered  to  the  swindler."  The  court 
held  that  the  carrier  was  not  liable.  In  the  opinion  the  court  said: 
"The  sale  was  voidable  by  the  plaintiff,  but  the  carrier,  by  whom 
they  were  forwarded,  had  no  duty  to  inquire  into  its  validity.  The 
person  who  bought  them,  and  who  called  himself  Edward  Pape,  owned 
the  goods,  and  upon  their  arrival  in  Dayton  had  the  right  to  de- 
mand them  of  the  carrier.  In  delivering  them  to  him  the  carrier  was 
guilty  of  no  fault  or  negligence.  It  delivered  them  to  the  person  who 
bought  and  owned  them,  who  went  by  the  name  of  Edward  Pape, 
and  thus  answered  the  directions  upon  the  package,  and  who  was 
the  person  to  whom  the  plaintiff  sent  them."  There  is  a  marked  dis- 
tinction between  these  cases  and  the  one  under  consideration,  and  they 
cannot  control  here. 

Another  case  relied  upon  is  Samuel  v.  Cheney,  135  Mass.  278,  46 
Am.  Rep.  467  [ante,  p.  163].  That  case,  in  its  facts,  is  more  like  the 
one  under  consideration  than  any  that  has  been  cited  by  appellant,  and 
it  seems  to  sustain  the  position  of  appellant.  But  while  we  recognize  the 
ability  of  the  court  in  which  the  case  was  decided,  we  do  not  regard  the 
rule  laid  down  as  the  correct  one,  and  we  are  not  inclined  to  follow  it. 
Some  other  cases  have  been  cited  in  the  argument  of  counsel,  but  it 


172  THE  carrier's  undertaking.  (Part  2 

will  not  be  necessary  to  refer  to  them  here.  The  cases  bearing  on 
the  question  are  not  entirely  harmonious,  but  the  rule  adopted  in  this 
state  and  in  the  courts  of  many  other  states,  that  the  carrier  is  an  in- 
surer for  the  safe  delivery  of  the  goods  to  the  person  to  whom  they 
are  consigned,  is,  as  we  think,  the  only  safe  rule  to  be  adopted.  This 
rule  gives  protection  to  the  consignor,  who  pays  his  money  to  the  car- 
rier to  transport  and  deliver  goods  to  the  consignee,  and  at  the  same 
time  imposes  no  unreasonable  responsibility  on  the  carrier.  When 
money  or  goods  have  been  delivered  to  a  carrier  to  be  carried  and  de- 
livered to  a  certain  named  person,  when  they  reach  their  destination 
it  is  the  business  of  the  agent  of  the  carrier  to  deliver  to  the  real  per- 
son to  whom  they  are  consigned,  and,  as  said  by  Hutchinson,  no  cir- 
cumstance of  fraud,  imposition,  or  mistake  will  excuse  the  common 
carrier  from  responsibility  for  a  delivery  to  the  wrong  person.  Where 
the  consignee  is  unknown  to  the  agent  of  the  carrier,  it  is  his  duty  to 
hold  the  goods  until  the  consignee  furnishes  ample  proof  that  he  is 
the  person  to  whom  the  goods  were  consigned. 

When  Shearer  &  Co.  received  a  telegram  from  J.  C.  Stubblefield, 
and  forwarded  a  package  of  money  directed  to  J.  C.  Stubblefield,^ 
they  supposed  and  believed  the  order  came  from  the  man  with  whom 
they  had  previously  had  dealings  and  with  whom  they  were  personally 
acquainted,  and,  when  they  delivered  the  package  to  the  carrier,  it 
was  consigned  to  him.  The  fact  that  an  impostor  had  sent  a  telegram 
in  the  name  of  J.  C.  Stubblefield,  and  a  reply  to  J.  C.  Stubblefield  was 
returned  which  was  delivered  to  the  impostor,  did  not  authorize  the 
agent  of  the  carrier  to  deliver  the  package  directed  to  J.  C.  Stubble- 
field to  an  impostor  representing  that  he  was  J.  C-  Stubblefield.  Here 
the  package  of  money  was  consigned  to  J.  C.  Stubblefield,  and  the 
carrier  was  directed  to  deliver  the  money  to  him  and  to  him  only. 
This  was  not  done.  The  money  was  never  delivered  to  J.  C.  Stubble- 
field, but  the  agent  of  the  carrier  delivered  it  to  an  impostor,  and  for  a 
failure  to  deliver  the  package  to  J.  C.  Stubblefield  the  carrier  is  liable. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. *2 


SINGER  V.  MERCHANTS'  DESPATCH  TRANSP.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1906.    191  Mass.  449,  77  N.  E.  882, 
114  Am.  St.  Rep.  635.) 

Action  in  tort  and  contract  for  the  value  of  three  cases  of  boots  and 
shoes  delivered  to  the  defendant  for  carriage.  The  case  was  tried 
without  a  jury,  and  comes  up  on  facts  agreed  by  the  parties  and  on 
findings  by  the  trial  judge.  The  plaintiff,  Louis  Singer  of  Boston, 
shipped  the  goods  in  question  to  fill  an  order  from  one  Guralnik  of 

42  Ace.  American  Ex.  Co.  v.  Stack,  29  Ind.  27  (18G7).     See,  also,  Wernwag  v. 
RaUroad  Co.,  117  Pa.  46,  11  Atl.  868  (1887). 


Ch.  3)  THE   COMPLETION    OF   THE   CARRIER'S    UNDERTAKING.  173 

Springfield,  111.  The  cases  were  marked  "L.  Singer,  Springfield,  111." 
Plaintiff  accepted  a  receipt  which  provided  that  the  goods  should  be 
delivered  to  L-  Singer,  Springfield,  111.,  and  might,  at  the  carrier's  op- 
tion, be  delivered  without  the  production  of  the  receipt.  Plaintiff  in- 
dorsed the  receipt  and  attached  it  to  a  draft  for  the  price  of  the  goods, 
which  he  sent  to  Springfield  through  his  bank,  with  instructions  to 
notify  Guralnik.  The  cases  were  delivered  at  Springfield  to  Lena 
Singer,  who  had  a  shoeshop  there. 

The  trial  judge  found  that  defendant,  in  delivering  to  a  person  who 
produced  no  receipt,  was  negligent  in  not  making  eft'ort  to  ascertain 
that  she  was  the  person  intended  by  the  shipper. 

LoRiNG,  J.^^  The  contract  of  the  defendant  in  the  case  at  bar  was 
to  dehver  the  cases  in  question  to  L.  Singer,  Springfield,  III,  without 
requiring  the  production  of  a  receipt  or  bill  of  lading. 

By  accepting  the  receipt,  which  states  the  conditions  upon  which  the 
property  is  received,  the  plaintiff  accepted  those  terms  as  part  of  the 
contract.  Grace  v.  Adams,  100  Mass.  505,  97  Am.  Dec.  117, 1  Am.  Rep. 
131;  Hoadley  v.  Northern  Transportation  Co.,  115  ]\Iass.  301,  15  Am. 
Rep.  106;  Fonseca  v.  Cunard  Steamship  Co.,  153  Mass.  553,  27  N.  E. 
665,  12  L.  R.  A.  340,  25  Am.  St.  Rep.  660  [post,  p.  418].  The  receipt 
in  question  states  on  its  face  that  these  conditions  are  to  be  found  on  the 
back.  Such  a  receipt  comes  within  that  rule.  See  in  this  connection 
Pemberton  Co.  v.  New  York  Central  Railroad,  104  Mass.  144 ;  Doyle 
V.  Fitchburg  Railroad,  166  Mass.  492,  44  N.  E.  611,  33  E.  R.  A.  844, 
55  Am.  St.  Rep.  417.  By  force  of  this  contract  between  the  parties 
the  case  at  bar  is  brought  within  the  rule  applied  on  proof  of  custom  in 
Forbes  v.  Boston  &  Lowell  Railroad,  133  Mass.  154  [ante,  p.  156]. 

The  defendant  performed  this  contract  by  delivering  the  goods  to  L. 
Singer,  Springfield,  111. 

Whether  the  consignor  in  the  case  at  bar  meant  L.  Singer  of  Boston, 
Mass.,  or  L.  Singer  of  Springfield,  111.,  is  not  material.  What  a  con- 
signor in  fact  means  if  not  communicated  to  the  carrier  is  not  material. 
The  rights  of  the  parties  depend  upon  what  is  communicated  to  the 
carrier.  Samuel  v.  Cheney,  135  Mass.  278,  46  Am.  Rep.  467  [ante,  p. 
163].  The  carrier  in  making  delivery  is  bound  to  follow  that  direction 
whatever  it  may  mean  under  all  the  circumstances  of  the  case. 

It  is  agreed  that  the  Lena  Singer  to  whom  the  goods  were  delivered 
was,  before  and  at  the  time  in  question,  doing  business  in  Spring- 
field, 111.,  under  the  name  of  L.  Singer,  and  was  so  known  to  the  de- 
fendant's representatives  in  Springfield;  also  that  she  had  been  re- 
ceiving goods  over  the  defendant's  line  "nearly  every  week,  addressed 
to  L.  Singer,"  and  that  "these  cases  were  marked  and  billed  in  the 
same  manner  as  other  goods  received  at  Springfield  for  said  Lena 
Singer."  It  does  not  appear  that  there  was  any  other  E.  Singer  in 
Springfield. 

*3  The  statement  of  facts  has  been  rewritten. 


174  THE  carrier's  undertaking.  (Part  2 

Under  these  circumstances  we  see  no  ground  for  saying  that  the  de- 
fendant did  not  follow  the  instructions  given  to  him  in  delivering  the 
goods  to  Lena  Singer. 

We  cannot  accede  to  the  plaintiff's  argument  that  because  the  de- 
fendant's agent  in  Boston  had  notice  of  the  name  of  the  consignor  and 
consignee  being  the  same  he  had  notice  that  the  goods  were  to  be 
delivered  to  the  consignor  and  therefore  that  L.  Singer,  Springfield, 
111.,  meant  L.  Singer  of  Boston.  If  any  inference  ought  to  have  been 
drawn  from  this  fact  we  think  it  was  that  L.  Singer  of  Springfield 
was  the  consignor  acting  through  an  agent  in  making  the  consign- 
ment. 

Neither  is  it  material  that  "the  plaintiff  had  been  doing  business  in 
Boston  for  eleven  years,  and  had  been  sending  goods  to  Springfield, 
111.,  for  about  five  years  prior  to  November  21,  1900,  about  six  or  seven 
times  a  year  to  the  same  Guralnik,  and  had  always  sent  his  goods  ad- 
dressed in  the  same  way,  namely,  L.  Singer,  Springfield,  111.,  and 
through  the  defendant  company,  and  he  never  had  any  trouble  before 
this  time."  The  defendant's  agent  in  Springfield  was  not  bound  to  re- 
member and  was  not  chargeable  with  knowledge  of  these  facts.  See 
in  this  connection  Raphael  v.  Bank  of  England,  17  C.  B.  161 ;  Vermilye 
V.  Adams  Express  Co.,  21  Wall.  138,  22  L.  Ed.  609 ;  Seybel  v.  Nat. 
Currency  Bank,  54  N.  Y.  288,  13  Am.  Rep.  583,  where  it^is  held  that 
previous  notice  of  loss  to  a  subsequent  purchaser  of  a  negotiable  securi- 
ty does  not  charge  him  with  knowledge  of  the  facts  stated  in  the  notice. 
Whether  this  is  the  law  in  Alassachusetts  was  left  open  in  Hinckley  v. 
Union  Pacific  R.  R.,  129  Mass.  52,  59,  37  Am.  Rep.  297. 

The  issues  of  negligence  on  the  part  of  the  plaintiff  and  on  the  part 
of  the  defendant,  on  which  the  judge  below  tried  the  case,  were  not  the 
issues  on  which  the  rights  of  the  parties  in  the  case  at  bar  depend. 
Where  the  instructions  as  to  delivery  are  doubtful  under  the  circum- 
stances known  to  the  carrier,  he  is  put  on  his  inquiry,  and  the  question 
of  negligence  arises.  But  the  instructions  here  were  not  doubtful  un- 
der the  circumstances  known  to  the  defendant.  The  judge  in  the 
court  below  apparently  acted  on  Samuel  v.  Cheney,  135  Mass.  278,  46 
Am.  Rep.  467.  There  was  ground  for  arguing  that  instructions  there 
were  doubtful  under  the  circumstances  known  to  the  carrier.  It  is  to 
be  observed  that  the  charge  to  the  jury  in  that  case  was  held  to  have 
been  "sufficiently  favorable  to  the  plaintiff" ;  it  was  not  held  to  have 
been  correct. 

The  conclusion  to  which  we  have  come  is  supported  by  Dunbar  v. 
Boston  &  Providence  R.  R.,  110  Mass.  26,  14  Am.  Rep.  576 ;  Samuel 
V.  Cheney,  135  Mass.  278,  46  Am.  Rep.  467;  McKean  v.  Mclver.  L. 
R.,  6  Ex.  36  [ante.  p.  166]  ;  Stimson  v.  Jackson,  58  N.  H.  138  ;  Conley 
V.  Canadian  Pacific  Ry.,  32  Ont.  258;  The  Drew  (D.  C.)  15  Fed.  826; 
Nebraska  Meal  Mills  v.  St.  Louis  Southwestern  Ry.,  64  Ark.  169,  41  S. 
W.  810,  38  L.  R.  A.  358,  62  Am.  St.  Rep.  183  [ante,  p.  155]. 


Ch.  3)  THE  COMPLETION    OF  THE   CARRIER'S  UNDERTAKING.  175 

The  plaintiff  evidently  intended  to  make  the  goods  shipped  security 
for  his  draft  for  the  unpaid  balance  of  the  purchase  money  due  him. 
To  do  that  he  should  have  had  the  goods  billed  to  his  own  order  and 
then  indorsed  the  bill  of  lading  to  the  bank  discounting  his  draft. 
By  mistake  he  billed  the  goods  "straight"  and  is  now  seeking  to  make 
the  defendant  liable  for  his  own  blunder. 

In  the  opinion  of  a  majority  of  the  court  the  entry  must  be : 

Exceptions  sustained.** 

4  4  Ace.  The  Drew,  1.5  Fed.  826  (1883).  But  see  Houston,  etc.,  K.  Go,  v.  Adams, 
49  Tex.  748,  30  Am.  Rep.  116  (1878). 


176  THE  carrier's  undertaking.  (Part  2 


CHAPTER  IV 

WHO  MAY  SUE  FOR  BREACH  OF  THE  CARRIER'S 
UNDERTAKING 


FINN  V.  WESTERN  RAILROAD  CORPORATION. 

(Supreme  Judicial  Court  of  Massachusetts,  1S73.    112  Mass.  524,  17  Am. 

Eep.  128.) 

Contract  against  the  Western  Railroad  Corporation  as  a  common 
■carrier  for  failure  to  forward  and  deliver  shingles  to  Joseph  S.  Clark 
at  Westfield.  The  plaintiff,  having  received  from  Clark  an  order  for  a 
quantity  of  shingles,  shipped  them  by  canal  boat  and  took  from  the 
master  a  receipt  which  stated  that  they  were  to  be  delivered  to  the 
Western  Railroad  Company  at  Greenbush.  They  were  so  delivered, 
arid  were  there  destroyed  by  fire.  The  railroad  company's  agent  at 
Greenbush  testified  that  he  refused  to  receive  the  shingles  except  for 
storage,  because  he  did  not  know  the  name  or  address  of  the  person 
for  whom  they  were  intended.  The  jury  found,  however,  that  he  saw 
the  full  name  and  address  of  Clark  upon  the  bundles,  and  gave  a 
verdict  for  plaintiff.  Defendant  excepted  to  the  court's  refusal  to  give 
certain  instructions  based  upon  the  theory  that  title  to  the  shingles  had 
passed  to  Clark,  and  that,  if  so,  plaintiff  could  not  recover. 

Wells,  J.^  The  only  question  argued  by  the  defendant,  upon  these 
exceptions,  is  whether  the  action  for  loss  of  the  property  can  be  main- 
tained by  and  in  behalf  of  Finn.  It  is  contended  that  if  there  was  a 
delivery,  with  proper  directions  for  the  transportation,  so  as  to  charge 
the  defendant  with  responsibility  as  carrier,  then  the  title  in  the  prop- 
erty had  passed  to  Clark,'  the  consignee ;  and  the  right  of  action  for 
injury  to  it  was  in  him  alone.  On  the  other  hand,  if  proper  directions 
for  its  transportation  had  not  been  given,  then  the  defendant  is  not 
liable  at  all  as  carrier,  according  to  the  former  decision  in  103  Mass. 
283.  It  is  not  contended  that  the  defendant  is  liable  as  warehouseman. 
In  either  aspect  of  the  case,  upon  this  view  of  the  law,  no  recovery 
could  be  had  by  Finn. 

The  jury  having  found  that  the  defendant  became  responsible  as 
carrier,  the  cas,e  is  now  presented  only  in  that  aspect.  We  think 
also  that  the  facts,  as  disclosed  by  the  present  bill  of  exceptions,  show 
that  the  title  to  the  property  had  passed  to  Clark  before  the  loss  oc- 
curred;  leaving  in  Finn  at  most  only  a  right  of  stoppage  in  transitu. 

The  liabilities  of  a  common  carrier  of  goods  are  various ;  and  when 
not  controlled  by  express  contract,  they  spring  from  his  legal  obliga- 

1  The  statement  of  facts  has  been  rewritten. 


Ch.  4)  WHO   MAY   SUE    FOR   BREACH.  177 

tions,  according  to  the  relations  he  may  sustain  to  the  parties  either  as 
employers,  or  as  owners  of  the  property.  Prima  facie,  his  contract  of 
service  is  with  the  party  from  whom,  directly  or  indirectly,  he  receives 
the  goods  for  carriage;  that  is,  with  the  consignor.  His  obligation 
to  carry  safely,  and  deliver  to  the  consignees,  subjects  him  to  liabili- 
ties for  any  failure  therein,  which  may  be  enforced  by  the  consignees 
or  by  the  real  owners  of  the  property,  by  appropriate  actions  in  their 
own  names,  independently  of  the  original  contract  by  which  the  serv- 
ice was  undertaken.  Such  remedies  are  not  exclusive  of  the  right  of 
the  party  sending  the  goods,  to  have  his  action  upon  the  contract  im- 
plied from  the  delivery  and  receipt  of  them  for  carriage.  This,  in  ef- 
fect, we  understand  to  be  the  result  of  the  elaborate  discussion  of  the 
principles  applicable  to  the  case  in  Blanchard  v.  Page,  8  Gray,  281. 
That  decision  may  not  be  precisely  in  point,  as  an  adjudication,  to 
govern  the  case  now  before  us;  for  the  reason  that  there  was  a 
written  receipt  or  bill  of  lading  for  carriage  by  water,  and  the  plain- 
tiffs were  acting  in  the  transaction  as  agents  for  the  owners  of  the 
goods ;  yet  the  general  principles  evolved  do  apply,  and  are  satisfac- 
tory to  us  for  the  determination  of  the  present  case. 

When  carrying  goods  from  seller  to  purchaser,  if  there  is  nothing 
in  the  relations  of  the  several  parties  except  what  arises  from  the 
fact  that  the  seller  commits  the  goods  to  the  carrier  as  the  ordinary 
and  convenient  mode  of  transmission  and  delivery  in  execution  of 
the  order  or  agreement  of  sale,  the  employment  is  by  the  seller,  the 
contract  of  service  is  with  him,  and  actions  based  upon  that  contract 
may,  if  they  must  not  necessarily,  be  in  the  name  of  the  consignor. 
If,  however,  the  purchaser  designates  the  carrier,  making  him  his 
agent  to  receive  and  transmit  the  goods;  or  if  the  sale  is  complete 
before  delivery  to  the  carrier,  and  the  seller  is  made  the  agent  of 
the  purchaser  in  respect  to  the  forwarding  of  them — a  different  im- 
plication would  arise,  and  the  contract  of  service  might  be  held  to  be 
with  the  purchaser.  This  distinction,  we  think,  must  determine  wheth- 
er the  right  of  action  vipon  the  contract  of  service,  implied  from  the 
delivery  and  receipt  of  goods  for  carriage,  is  in  the  consignor  or  in 
the  consignee.  In  the  case  of  Blanchard  v.  Page  the  action  was  main- 
tained in  the  name  of  the  consignors,  who  were  merely  the  agents  of 
the  owners  in  forwarding  the  goods.  But  that  was  explicitly  on  the 
ground  of  the  express  contract  with  them,  embodied  in  the  receipt  or 
bill  of  lading. 

As  already  suggested,  the  consignee,  by  virtue  of  his  right  of  pos- 
session, or  the  purchaser,  by  virtue  of  his  right  of  property,  may 
have  an  action  against  the  carrier  for  the  loss,  injury,  or  detention 
of  the  goods,  though  not  party  to  the  original  contract.  Such  action 
is  in  tort  for  the  injury  resulting  from  a  breach  of  duty  imposed  by 
law  upon  the  carrier;  or,  in  the  language  of  the  early  cases,  upon 
"the  custom  of  the  realm." 
Green  Oakb. — 12 


378  THE  carrier's  undertaking.  (Part  2 

There  are  many  cases,  both  in  England  and  in  the  United  States, 
in  which  the  doctrine  appears  to  be  maintained  that,  except  when 
there  is  a  special  contract,  a  remedy  for  injury  resulting  from  breach 
of  duty  by  a  carrier  can  be  had  only  in  the  name  and  behalf  of  some 
one  having  an  interest  in  the  property  at  the  time  of  the  breach,  which 
is  injuriously  affected  thereby. 

The  rule  might  well  be  conceded,  if  the  exceptions  were  not  too 
restricted.  It  will  hold  good  in  actions  of  tort,  because  they  are 
founded  upon  injury  to  some  interest  or  right  of  the  plaintiff.-  And 
the  cases  which  support  this  view  are  mostly,  if  not  altogether,  ac- 
tions of  tort.  This  is  true  of  the  leading  early  case  from  which  the 
doctrine  is  mainly  derived,  Dawes  v.  Peck,  8  T.  R.  330 ;  also  of  Grif- 
fith V.  Ingledew,  6  Serg.  &  R.  (Pa.)  429,  9  Am.  Dec.  444;  Green  v. 
Clark,  0  Denio  (N.  Y.)  497;  Id.,  13  Barb.  (N.  Y.)  57;  and  Id.,  13 
N.  Y.  343 ;  and  does  not  appear  from  the  report  to  be  otherwise  in 
Krulder  v.  Ellison,  47  N.  Y.  36,  7  Am.  Rep.  402.  In  discussing  the 
grounds  of  decision  it  seems  to  have  been  assumed  by  various  judges, 
as  we  think,  erroneously,  that  the  right  of  recovery  necessarily  in- 
volved the  question  with  whom  the  original  contract  of  service  was 
made.  And  the  effort  to  make  the  inference  of  law  as  to  that  con- 
tract conform  to  what  was  deemed  the  proper  decision  as  to  the  right 
to  recover  for  the  injury,  has  led  to  some  statements  of  legal  infer- 
ence which  appear  to  us  to  be  somewhat  overstrained.  Thus  in  Dawes 
V.  Peck  it  is  said  by  Lawrence,  J.,  that,  in  the  payment  of  freight  by 
the  consignor,  he  is  to  be  regarded  as  the  agent  of  the  consignee; 
that  the  carrier  generally  knows  nothing  of  the  consignor,  but  looks 
to  the  person  to  whom  the  goods  are  directed.  In  Freeman  v.  Birch, 
1  Nev.  &  Man.  420,  it  is  said  by  Parke,  J.,  "In  ordinary  cases  the 
vendor  employs  the  carrier  as  the  agent  of  the  vendee."  In  Green  v. 
Clark,  13  Barb.  (N.  Y.)  57,  it  is  said  by  Allen,  J.,  that  when  the  con- 
signee is  the  legal  owner,  or  the  property  vests  in  him  by  the  delivery 
to  the  carrier  "it  is  an  inference  of  law,  and  not  a  presumption  of 
fact,  that  the  contract  for  the  safe  carriage  is  between  the  carrier  and 
consignee,  and  consequently  the  latter  has  the  legal  right  of  action." 
But  in  the  same  case  in  the  Court  of  Appeals  (12  N.  Y.  343)  it  was 
regarded  as  immaterial  by  whom  the  contract  was  made,  and  whether 

2  It  has  been  held  that  a  consignor  without  interest  in  the  goods  may  not 
maintain  an  action  in  tort  for  breach  of  duty  as  common  carrier,  though  a 
party  to  the  contract  of  carriage.  No.  Pac.  Ry.  Co.  v.  Lewis,  89  111.  App.  30 
(1900).  But  a  bailee  shipping  to  his  agent  may  sue  in  tort.  Gt.  Western  liy. 
Co.  V.  McComas,  33  111.  186  (1804) ;  U.  S.  Express  Co.  v.  Council,  84  111.  App, 
491  (1899) ;  Walter  v.  Ala.,  etc.,  Co.,  142  Ala.  474,  39  South.  87  (1904).  So  may 
one  to  whom  goods  are  consigned  under  a  contract  for  sale  by  him  on  com- 
mission. Boston  &  Me.  R.  Co.  v.  Warrior  Co.,  76  Me.  2.51  (1884);  Mo.  Pac. 
R.  Co.  V.  Peru-Van  Zandt  Co.,  73  Kan.  295,  85  Pac.  408,  87  Pac.  80,  6  L.  R.  A. 
(N.  S.)  1058,  117  Am.  St.  Rep.  408  (1900).  But  see  Cobb  v.  I.  C.  R.  Co..  88  111. 
394  (1878).  An  owner  may  sue  in  tort,  though  neither  consignor  nor  consignee. 
Fast  V.  Canton,  etc.,  R.  Co.,  77  Miss.  498,  27  South.  525  (1899). 


Ch.  4)  WHO   MAY    SUE    FOR   BREACH.  179 

the  plaintiff  was  consignor  or  consignee,  for  the  purposes  of  an  action 
of  case  for  neghgence  by  which  his  property  was  injured. 

In  Griffith  v.  Ingledew,  the  dissenting  opinion  of  Gibson,  J.,  assum- 
ing that  the  contract  of  carriage  formed  the  basis  of  the  action,  com- 
bats with  great  force  of  reasoning  the  proposition  that  a  contract  wnth 
the  consignee  is  the  legal  result  of  the  receipt  of  goods  by  a  carrier, 
when  no  privity  with  or  authority  from  the  consignee  is  shown,  and 
none  professed  by  the  consignor  at  the  time,  unless  the  direction  of 
the  goods  to  the  address  of  the  consignee  can  be  taken  to  be  such  pro- 
fession. 

The  whole  force  and  effect  of  the  reasoning  in  Blanchard  v.  Page  is 
in  the  same  direction.  The  ordinary  bill  of  lading  or  receipt,  given 
to  the  consignor  by  the  carrier,  simply  expresses  what  is  the  real  sig- 
nificance of  the  transaction  independently  of  the  writing.  There  is  no 
reason  for  giving  a  different  interpretation  to,  or  drawing  a  different 
inference  from,  the  acts  of '  parties,  because  of  a  writing  which  is 
nothing  but  a  voucher  taken  to  preserve  the  evidence  of  those  acts. 

Whatever  remedy  is  sought  in  contract  must  necessarily  be  sought 
in  the  name  of  the  party  with  whom  the  contract  is  entered  into, 
whether  it  be  special,  that  is.  express,  or  implied.  The  question  then 
is  simply  this :  In  the  absence  of  an  express  agreement,  with  whom 
is  the  carrier's  contract  of  employment  and  service  in  respect  of  goods 
delivered  to  him  by  the  seller  to  convey  to  the  purchaser,  when  there 
is  no  privity  or  relation  of  agency  between  the  carrier  and  the  pur- 
chaser save  that  which  springs  from  possession  of  the  goods,  and  the 
seller  has  no  authority  to  make  a  contract  for  the  purchaser  except 
what  is  to  be  implied  from  the  agreement  of  purchase  or  the  order  for 
the  goods? 

The  law  imposes  upon  the  carrier  the  duty  to  transport  the  goods, 
allows  him  a  reasonable  compensation,  and  gives  him  a  lien  upon  the 
goods  for  security  of  its  payment.  It  also  implies  a  promise  on  the 
one  part  to  carry  and  deliver  the  goods  safely,  and,  on  the  other,  to 
pay  the  reasonable  compensation.  These  two  promises  form  the  con- 
tract. Each  is  the  counterpart  and  the  consideration  of  the  other. 
If  the  contract  of  carriage  is  with  the  consignee,  the  reciprocal  prom- 
ise to  pay  the  freight  must  be  his  also.  Against  this  inference  are 
the  considerations  that  the  seller  is  acting  in  his  own  behalf  in  making 
the  delivery,  and  the  goods  remain  his  property  until  the  contract 
with  the  carrier  takes  effect.  The  title  of  the  purchaser  does  not  exist 
until  that  contract  is  made.    It  follows  as  a  result. 

The  carrier  is  not  agent  for  either  party,  but  an  intermediate,  inde- 
pendent principal.  If  made  an  agent  of  the  consignee,  his  receipt  of 
the  goods  cuts  off  the  right  of  stoppage  in  transitu  on  the  one  hand, 
and  satisfies  the  Statute  of  Frauds  on  the  other.  He  has  a  right  to 
look  for  his  compensation  to  the  party  who  employs  him,  unless  satis- 
fied from  his  lien.  The  fact  that,  as  between  seller  and  purchaser,  the 
purchaser  must  ordinarily  pay  the  expenses  of  transportation  as  a 


3  80  THE  carrier's  UNDERTAKING.  (Part  2 

part  of  the  cost  of  the  goods,  does  not  afifect  the  relations  of  contract 
between  the  carrier  and  either  party.  We  discover  nothing  in  the 
nature  of  the  transaction,  and  we  doubt  if  there  is  anything  in  the 
practice  or  understanding  of  the  community  which  will  justify  the 
inference  that  one  to  whom  goods  are  sent  by  carrier,  without  direc- 
tion or  authority  from  him,  other  than  an  agreement  of  purchase  or 
consignment,  is  the  party  who  employed  the  carrier  and  is  bound  to 
pay  him ;  unless  he  assumes  such  liability  by  receiving  the  goods  sub- 
ject to  the  charge. 

The  contract  is  made  when  the  goods  are  received  by  the  carrier. 
If  it  is  then  the  contract  of  the  consignee,  it  will  not  cease  to  be  so, 
and  become  the  contract  of  the  consignor,  by  reason  of  subsequent 
events.  Suppose,  then,  the  seller  exercises  his  right  of  stoppage  in 
transitu.  Is  the  purchaser  still  liable  to  the  carrier  for  the  unpaid 
freight?  Suppose  the  contract  of  sale  to  be  without  writing  and 
within  the  Statute  of  Frauds.  The  contract  of  the  carrier  is  not  with- 
in the  statute,  and  the  authority  to  the  seller  to  make  such  contract 
in  behalf  of  the  purchaser  need  not  be  in  writing.  Is  the  carrier  to 
look  to  the  purchaser  or  to  the  seller  for  the  freight?  Or  does  it  de- 
pend upon  the  contingency  whether  the  contract  of  sale  is  affirmed 
or  avoided  ?  And  if  affirmed,  and  the  carrier  should  deliver  the  goods 
without  insisting  on  his  lien,  of  whom  must  he  collect  it?  The  au- 
thorities hold,  when  the  agreement  of  sale  is  within  the  Statute  of 
Frauds,  that  the  contract  of  the  carrier  is  with  the  consignor.  Coombs 
v.  Bristol  &  Exeter  Railway  Co.,  3  H.  &  N.  510 ;  Coats  v.  Chaplin, 
3  O.  B.  483. 

We  do  not  think  the  carrier's  contract  and  right  to  recover  his 
freight  can  be  made  to  depend  upon  what  may  prove  to  be  the  legal 
effect  of  the  negotiations  between  consignor  and  consignee  upon  the 
title  to  the  property  which  is  the  subject  of  transportation.  His  con- 
tract must  arise  from  the  circumstances  of  his  employment.  He  has 
a  right  to  look  for  his  compensation  to  the  party  who  required  him 
to  perform  the  service  by  causing  the  goods  to  be  delivered  to  him 
for  transportation.  And  that  party,  unless  he  is  the  mere  agent  of 
some  other,  may  enforce  the  contract,  and  sue  for  its  breach  by  the 
carrier. 

One  who  forwards  goods  in  execution  of  an  order  or  agreement  for 
sale  is  not  a  mere  agent  of  the  purchaser  in  so  doing.  He  is  acting 
in  his  own  interest  and  behalf,  and  his  dealings  with  the  carrier  are 
in  his  own  right  and  upon  his  own  responsibility,  unless  he  has  some 
special  authority  or  directions  from  the'  purchaser,  upon  which  he  acts. 

The  plaintiff'  in  this  case  is  therefore  entitled  to  maintain  his  ac- 
tion upon  the  contract;  and  we  think  there 'is  no  sufficient  reason 
shown  to  prevent  his  recovering  the  full  value  of  the  property  de- 
stroyed. If  Clark  was  the  owner  at  the  time,  and  his  interest  has 
been  in  no  way  satisfied  or  discharged,  the  plaintiff  will  hold  the  pro- 
ceeds recovered  in  trust  for  his  indemnity.    Clark  might  have  prose- 


Ch.  4)  WHO    MAY    SUE    FOR   BREACH.  181 

cuted  an  action  of  tort  in  his  own  name,  and  recovered  the  value 
of  his  property  lost ;  in  which  event  the  damages  in  Finn's  suit  would 
have  been  nominal,  or  reduced  to  whatever  amount  of  actual  loss  he 
suffered.  But  it  is  not  pretended  that  Clark  has  ever  brought  any 
suit  or  made  any  claim  upon  the  defendant,  although  knowing  of 
the  pendency  of  this  suit,  and  having  testified  as  a  witness  in  the 
same;  and  all  claim  by  him  is  long  since  barred.  It  is  to  be  pre- 
sumed that  he  acquiesces  in  the  recovery  by  Finn. 

If  there  were  any  doubt  upon  this  point,  we  might  order  a  new  trial 
upon  the  question  of  damages  only.  As  there  is  none,  the  judgment 
must  be  upon  the  verdict. 

Exceptions  overruled.^ 

3  Ace.  Carter  v.  Graves,  9  Terg.  (Tenn.)  446  (1S36) ;  I.  C.  R.  Co.  v.  Schwartz, 
13  111.  App.  490  (18S.3) ;  Carter  v.  So.  Ry.  Co.,  Ill  Ga.  38,  36  S.  E.  308,  .50  L. 
R.  A.  3.j4  (1000) ;  Ross  v.  Chicago,  etc.,  R.  Co.,  119  Mo.  App.  290,  95  S.  W.  977 
(190G).  Contra:  Uuiou  Pac.  R.  Co.  v.  Metcalf,  50  Neb.  4.52,  69  N.  W.  961  (1897) ; 
Butler  V.  Pittsbiu-g.  etc.,  Ry.  Co..  18  Intl.  App.  656,  46  N.  E.  92  (1897) ;  Frank- 
furt V.  Weir,  40  Misc.  Rep.  683,  83  N.  Y.  Supp.  112  (1903).  For  other  cases,  see 
Carriers,  9  Cent.  Dig.  §§  262-269,  4  Dec.  Dig.  §§  72,  76. 


182  THK  carrier's  undertaking.  (Part  2 

CHAPTER  V 
RIGHTS  OF  A  HOLDER  OF  A  BILL  OF  LADING 


THOMPSON  V.  DOMINY. 

(Court  of  Exchequer,  1845.     14  Mees.  &  W.  403.) 

Assumpsit.  The  declaration  alleged  that  the  defendants  were  the 
owners  of  the  ship  Julia,  the  master  of  which  had  shipped  on  board 
thereof,  on  account  of  one  Grant,  1,303  barrels  of  oats,  to  be  carried  by 
the  defendants,  and  safely  delivered  to  Grant  or  his  assigns,  he  or  they 
paying  freight  for  the  same  ;  that  the  defendants  signed  a  bill  of  lading 
to  that  effect,  and  delivered  the  same  to  Grant,  and  that  Grant,  for  a 
certain  sum,  indorsed  the  bill  of  lading  to  the  plaintiffs.  And  it  alleged 
that  although  the  defendants  had  delivered  part  of  the  said  goods  to 
the  plaintiffs,  yet  that  they  refused  to  deliver  the  residue  thereof. 

The  defendants  pleaded  non  assumpserunt,  and  other  pleas,  on 
which  nothing  now  turned. 

At  the  trial,  before  Coleridge,  J.,  at  the  last  spring  assizes  at  Win- 
chester, it  was  objected,  for  the  defendants,  that  the  plaintiffs  ought 
to  be  nonsuited,  on  the  ground  that  no  action  was  maintainable  by  the 
mere  indorsee  of  a  bill  of  lading  in  his  own  name,  the  instrument  not 
being  negotiable.  The  learned  judge  inclined  to  that  opinion,  but  re- 
fused to  nonsuit,  and,  the  jury  having  found  a  verdict  for  the  plain- 
tiffs, he  reserved  leave  to  the  defendants  to  move  to  enter  a  nonsuit. 

Kinglake,  Serjt.,  having  in  Easter  term  last  obtained  a  rule  accord- 
ingly, 

Greenwood  now  showed  cause.     *     *     * 

Parke,  B.  I  never  heard  it  argued  that  a  contract  was  transfera- 
ble, except  by  the  law  merchant,  and  there  is  nothing  to  show  that  a 
bill  of  lading  is  transferable  under  any  custom  of  merchants.  It  trans- 
fers no  more  than  the  property  in  the  goods ;  it  does  not  transfer  the 
contract.  That  is  the  conclusion  to  be  drawn  from  the  judgment  of 
Tindal,  C.  J.,  in  delivering  the  opinion  of  the  Court  of  Error  in  San- 
ders V.  Vanzeller,  4  Q.  B.  297 ;  and  Lord  Ellenborough  appears  clearly 
to  have  entertained  the  same  view  of  the  question. 

Alderson,  B.  I  am  of  the  same  opinion.  This  is  another  instance 
of  the  confusion,  as  Lord  Ellenborough  in  Waring  v.  Cox,  1  Camp. 
369,  expresses  it,  which  "has  arisen  from  similitudinous  reasoning  up- 
on this  subject."  Because,  in  Lickbarrow  v.  Mason,  3  T.  R.  71,  a  bill 
of  lading  was  held  to  be  negotiable,  it  has  been  contended  that  that 
instrument  possesses  all  the  properties  of  a  bill  of  exchange ;  but  it 
would  lead  to  absurdity  to  carry  the  doctrine  to  that  length.    The  word 


Ch.  5)  RIGHTS    OF   A    HOLDER   OF   A    BILL   OF   LADING.  183 

"negotiable"  was  not  used  in  the  sense  in  which  it  is  used  as  applica- 
ble to  a  bill  of  exchange,  but  as  passing  the  property  in  the  goods  only. 

RoLFE,  B.,  concurred. 

Rule  absolute.^ 


WICHITA  SAVINGS  BANK  v.  ATCHISON,  T.  &  S.  F.  R.  CO. 

(Supreme  Court  of  Kansas,  1878.    20  Kan.  519.) 

HoRTON,  C.  J.2  *  *  *  On  the  4th  of  September,  1876,  Henry 
Schneider  delivered  to  the  railroad  company,  at  Valley  Center,  a  cer- 
tain lot  of  wheat  which  was  put  into  a  car  to  be  consigned  to  his  order, 
or  assigns,  at  St.  Louis,  Mo.  At  the  time  of  the  delivery  of  the  wheat 
to  the  railroad  company,  the  defendant's  agent  at  Valley  Center  issued 
and  delivered  to  Schneider  two  original  bills  of  lading,  of  the  same 
terms,  tenor,  and  effect,  for  the  wheat,  and  each  of  which  showed  the 
receipt  of  23,000  pounds  of  wheat,  and  its  consignment  to  Henry 
Schneider,  or  to  his  order  or  assigns.  There  was  not  more  than  33,000 
pounds  of  wheat  delivered,  covered  by  the  two  bills  of  lading.  Schnei- 
der procured  the  issue  of  two  original  bills  of  lading,  instead  of  one, 
upon  his  statement  that  he  wished  one  original  bill  of  lading  to  file  in 
his  office  as  a  memorandum  of  the  transaction.  Schneider  took  the 
two  original  bills  of  lading  to  Wichita,  and  on  September  5th  nego- 
tiated one  of  them  to  Messrs.  Woodman  &  Son  for  a  valid  considera- 
tion. On  the  6th  of  September  Schneider  negotiated  the  other  original 
bill  of  lading  to  the  plaintiff,  a  banking  corporation,  in  the  regular 
course  of  business,  and  duly  transferred  and  indorsed  the  same  in 
writing  to  the  bank.  The  bank  accepted  the  bill  of  lading  from  Schnei- 
der, and  advanced  him  in  good  faith  the  money  sued  for  upon  the  bill 
of  lading,  and  wholly  relying  upon  it  for  security  for  the  advance- 
ment, and  without  any  knowledge  that  two  bills  of  lading  had  been 
issued  for  the  wheat.  The  wheat  was  forwarded  to  St.  Louis  by  the 
railroad  company,  and  there  delivered  to  the  holder  of  the  bill  of  lad- 
ing so  negotiated  to  Messrs.  Woodman  &  Son.  The  defendant  was, 
at  the  several  dates  above  named,  a  railway  corporation,  and  engaged 
in  operating  a  line  of  railway  from  the  city  of  Wichita,  by  and  through 
the  town  of  Valley  Center,  and  by  and  through  the  county  of  Sedg- 
wick, in  the  state  of  Kansas,  to  Kansas  City,  in  the  state  of  Missouri, 
and  in  carrying  and  transporting  grain  and  other  commodities  for 
hire  to  St.  Louis,  Mo.  It  was  the  usage  and  custom  of  the  railroad 
company,  at  its  station  of  Valley  Center,  to  issue  but  one  original  bill 
of  lading  for  any  one  shipment  of  grain,  which  "custom  was  known  to 

1  In  many  states  the  rule  of  this  case  has  been  changed  by  statutes  making 
bills  of  lading  negotiable,  or  providing  that  a  real  party  in  interest  may  sue, 
or  has  been  avoided  by  an  application  of  the  doctrine  of  Lawrence  v.  Fox,  20 
N.  Y.  208  (1859).    The  rule  does  not  prevail  in  admiralty. 

2  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


184  THE  carrier's  undertaking.  (Part  2 

plaintiff.  The  agent  of  the  defendant  by  whom  the  bills  of  lading 
were  issued  had  authority  to  receive  wheat  to  be  transported  by  the 
railroad  company  over  its  line  to  St.  Louis,  ]Mo.,  and  to  issue  bills  of 
lading  therefor;  but  the  company  had  given  the  agent  no  authority 
to  issue  more  than  one  original  bill  of  lading  for  any  single  shipment. 
Schneider  being  worthless,  and  having  absconded,  the  bank  lost  the 
principal  part  of  the  amount  of  its  advancement,  and  thereupon 
brought  this  action  to  recover  the  amount  of  its  loss.  Upon  an  agreed 
statement  of  facts,  substantially  in  accordance  with  the  foregoing,  the 
district  court  rendered  judgment  for  the  defendant. 

The  amount  involved  in  this  action  is  less  than  $1,000,  but  the  ques- 
tions in  issue  are  exceedingly  important.  Our  state  is  a  great  pro- 
ducer of  grain,  large  amounts  of  which  seek  markets  outside  of  its 
boundaries.  The  means  of  its  transportation  are  mainly  limited  to 
railroads,  and  commercial  transactions  by  our  grain  dealers  extend 
to  millions  each  year.  The  great  mass  of  these  products,  when  started 
to  Eastern  markets,  are  purchased  and  paid  for  through  bills  of  lad- 
ing. The  custom  of  grain  dealers  is  to  buy  of  the  producer  his  wheat, 
corn,  barley,  etc.,  then  deliver  the  same  to  a  railroad  company  for 
shipment  to  market.  The  railroad  company  issues  to  the  shipper  its 
bill  of  lading.  The  shipper  takes  his  bill  of  lading  to  a  bank,  draws 
a  draft  upon  his  commission  merchant,  or  consignee,  against  the  ship- 
ment, and  attaches  his  bill  of  lading  to  the  draft.^  Upon  the  faith  of 
the  bill  of  lading,  and  without  further  inquiry,  the  bank  cashes  the 
draft,  and  the  money  is  thus  obtained  to  pay  for  the  grain  purchased, 
or  to  repurchase  other  shipments.  In  this  way  the  dealer  realizes  at 
once  the  greater  value  of  his  consignments,  and  need  not  wait  for  the 
returns  of  the  sale  of  his  grain  to  obtain  money  to  make  other  pur- 
chases. In  this  way  the  dealer,  with  a  small  capital,  may  buy  and  ship 
extensively;  and,  while  having  a  capital  of  a  few  hundred  dollars 
only,  may  buy  for  cash,  and  ship  grain  valued  at  many  thousands. 

3  "Under  a  contract  for  sale  of  chattels  not  specific,  the  property  does  not 
pass  to  the  purchaser,  unless  there  is  afterwards  au  appropriation  of  the  spe- 
cific chattels  to  pass  under  the  contract ;  that  is,  unless  both  parties  agree  as 
to  the  specific  chattels  in  which  the  property  is  to  pass,  and  nothing  remains 
to  be  done  in  order  to  pass  it.  In  the  case  of  such  a  contract  the  delivery  by 
the  vendor  to  a  common  carrier  *  *  *  is  an  appropriation  sutticieut  to  pass 
the  property.  If,  however,  the  vendor,  when  shipping  the  articles  which  he 
intends  to  deliver  under  the  contract,  takes  the  bill  of  lading  to  his  own  order, 
and  does  so,  not  as  agent  or  on  behalf  of  the  purchaser,  but  on  his  own  behalf, 
it  is  held  that  he  thereby  reserves  to  himself  a  power  of  disposing  of  the  prop- 
erty, and  that  consequently  there  is  no  filial  appropriation,  and  the  property 
does  not  on  shipment  pass  to  the  purchasers.  *  *  *  So  if  the  vendor  deals 
with  or  claims  to  retain  the  bill  of  lading  in  order  to  secure  the  contract  price, 
as  when  he  sends  forward  the  bill  of  lading  with  a  bill  of  exchange  attached, 
with  directions  that  the  bill  of  lading  is  not  to  be  delivered  to  the  purchaser 
till  the  acceptance  or  payment  of  the  bill  of  exchange,  the  appropriation  is 
not  absolute,  but  until  acceptance  of  the  draft,  or  payment,  or  tender  of  the 
price,  is  conditional  only,  and  until  such  acceptance,  or  payment,  or  tender, 
the  property  in  the  goods  does  not  pass  to  the  purchaser."  Cotton,  L.  J.,  in 
Mirabita  v.  Imperial  Ottoman  Bank,  L.  R.  3  Ex.  164,  172  (1S7S). 


Ch.  5)  RIGHTS   OF   A    HOLDER   OF   A    BILL    OF    LADING.  185 

This  mode  of  -transacting  business  is  greatly  advantageous  both  to  the 
shipper  and  producer.  It  gives  the  shipper,  who  is  prudent  and  post- 
ed as  to  the  markets,  ahnost  unHmited  opportunities  for  the  purchase 
and  shipment  of  grain,  and  furnishes  a  cash  market  for  the  producer 
at  his  own  door.  It  enables  the  capitalist  and  banker  to  obtain  fair 
rates  of  interest  for  the  money  he  has  to  loan,  and  insures  him,  in  the 
w^ay  of  bills  of  lading,  excellent  security.  It  also  furnishes  additional 
business  to  railroad  companies,  as  it  facilitates  and  increases  shipments 
of  produce  to  the  markets. 

A  mode  of  business  so  beneficial  to  so  many  classes  ought  to  receive 
the  favoring  recognition  of  the  law  to  aid  its  continuance;  and  the 
later  decisions  have  gone  very  far  to  strengthen  the  quasi  negotiability 
of  bills  of  lading,  independent  of  any  statutory  authority.  Mr.  Justice 
Miller  said,  in  ]\IcNeil  v.  Hill,  Woolw.  96,  Fed.  Cas.  No.  8,914:  "As 
civilization  has  advanced,  and  commerce  extended,  new  and  artificial 
modes  of  doing  business  have  superseded  the  exchanges  by  barter,  and 
otherwise,  which  prevail  while  society  is  in  its  earlier  and  simpler 
stages.  The  invention  of  the  bill  of  exchange  is  a  familiar  illustration 
of  this  fact.  A  more  modern,  but  still  not  recent,  invention  of  like 
character,  for  the  transfer,  without  the  somewhat  cumbersome  and 
often  impossible  operations  of  actual  delivery  of  articles  of  personal 
property,  is  the  indorsement,  or  assignment,  of  bills  of  lading  and 
warehouse  receipts.  Instruments  of  this  kind  are  sui  generis.  From 
long  use  and  trade,  they  have  come  to  have  among  commercial  men  a 
well-understood  meaning,  and  the  indorsement  or  assignment  of  them 
as  absolutely  transfers  the  general  property  of  the  goods  and  chattels 
therein  named,  as  would  a  bill  of  sale.  *  *  *  jf  the  warehouse- 
man gives  to  the  party  who  holds  such  receipt  a  false  credit,  he  will 
not  be  sufiFered  to  contradict  his  statement  which  he  has  made  in  the 
receipt,  so  as  to  injure  a  party  who  has  been  misled  by  it," 

The  authorities  speak  of  bills  of  lading  passing  from  successive  ven- 
dor to  vendee,  and  thus  become  muniments  of  title  of  great  value. 
Where  one  advances  money  on  a  bill  of  lading,  or  buys  the  property 
therein  set  forth  by  taking  a  transfer  of  such  instrument  absolutely, 
the  only  evidence  which  he  has  of  the  quantity  of  goods  which  he  has 
bought,  or  advanced  money  on,  may  be  the  statement  contained  in  the 
bill  of  lading.  Indeed,  one  of  the  main  uses  of  bills  of  lading  of 
grain,  at  this  day,  is  to  afford  shippers  opportunity  to  obtain  advances 
upon  their  shipments.  When  issued,  the  parties  issuing  them  have  the 
knowledge  that  they  may  and  probably  will  be  used  with  commission 
merchants,  or  at  some  iDank,  to  obtain  advances  of  money.  In  the 
most  of  cases,  this  result  is  almost  certain  to  follow.  We  may  say  that 
the  bills  of  lading,  covering  the  shipments  in  this  case,  were  issued 
with  the  expectation  that  one  of  the  two  originals  would  be  hypothe- 
cated with  some  banker,  commission  merchant,  or  other  party,  so  uni- 
versally is  this  practice  recognized  and  adopted.  We  make  these  pre- 
liminary remarks,  of  the  character  and  usage  of  bills  of  lading,  as  they 


186  THE  carrier's  undertaking.  (Part  2 

tend  to  clearly  present  the  questions  in  controversy,  and  make,  it 
seems  to  us,  the  solution  of  them  easy. 

In  accordance  with  well-settled  rules,  the  plaintiff,  knowing  the  cus- 
tom of  the  defendant  to  issue  only  one  original  bill  of  lading  for  any 
one  shipment  of  grain,  having  made  advances  on  the  faith  of  the  bill 
of  lading  issued  by  the  agent  of  the  company  within  the  apparent 
scope  of  his  authority,  was  entitled  to  recover  of  such  defendant  all 
damages  resulting  to  him  from  the  issuance  of  two  original  bills  of 
lading  for  the  same  grain — or  perhaps  we  might  better  say,  for  this 
false  bill  of  lading — as  the  defendant  was  bound  by  the  act  of  its 
agent,  and  therefore  estopped  from  denying  it  had  the  grain  stated  in 
the  bill  sued  on.  When  the  defendant  knew  to  w^hat  uses  bills  of 
lading  could  be  and  usually  were  employed,  it  was  guilty  of  negli- 
gence in  issuing  two  original  bills  for  the  same  wheat,  in  violation 
of  its  usual  custom.  It  is  true,  one  was  issued,  so  that  Schneider 
might  file  it  away;  but  when  issued,  it  should  have  been  marked  or 
designated  as  a  "duplicate,"  so  as  to  be  incapable  of  being  hypothe- 
cated to  defraud  those  who  dealt  in  such  paper.  After  the  wheat 
shipped  by  Schneider  had  been  sold  to  Messrs.  Woodman  &  Son,  by 
transfer  of  the  bill  of  lading  negotiated  to  them  on  September  5th,  the 
other  bill  of  lading,  transferred  to  the  plaintiff  on  September  6th,  was 
as  worthless  and  valueless,  as  if  it  had  been  a  false  bill.  Indeed,  it 
was  in  this  respect  then  false,  for  it  purported  to  cover  certain  wheat 
which  it  did  not  represent.  The  defendant  directly  afforded  Schneider 
opportunity  to  commit  a  fraud  upon  the  plaintiff  by  issuing  the  second 
bill  of  lading;  and  its  action  in  this  regard  was  just  as  harmful  to  the 
plaintiff  as  if  it  had  issued  said  bill  with  the  intention  to  defraud  the 
bank,  or  as  if  no  wheat  had  been  received  by  it  at  all.  Both  of  the 
bills  are  admitted  to  be  originals,  and  the  company  was  certainly 
guilty  of  culpable  negligence. 

In  a  late  English  case,  Brett,  J.,  stated  the  doctrine  of  estoppel  as 
follows :  "If  in  the  transaction  itself,  which  is  in  dispute,  one  has  led 
another  into  the  belief  of  a  certain  state  of  facts,  by  conduct  of  cul- 
pable negligence  calculated  to  have  that  result,  and  such  culpable  neg- 
ligence has  been  the  proximate  cause  of  leading,  and  has  led,  the  other 
to  act,  by  mistake,  upon  such  belief,  to  his  prejudice,  the  second  can- 
not be  heard  afterward  as  against  the  first  to  show  that  the  state  of 
facts  referred  to  did  not  exist."  Carr  v.  London  Railway,  L.  R.  10 
C.  P.  307.     *     *     * 

Considering  the  custom  of  the  railroad  company,  the  mode  of  doing 
business  with  bills  of  lading,  the  bank  was  guilty  of  no  negligence  in 
advancing  the  money  to  Schneider.  The  company  was  guilty  of  cul- 
pable negligence,  which  resulted  in  the  consummation  of  the  fraud. 
"The  representations  in  the  bills  were  made  to  any  one  who  in  the 
course  of  business  might  think  fit  to  make  advances  on  the  faith  of 
them."  The  bank  acted  on  these  representations  in  good  faith. 
Schneider,  who  obtained  the  fruits  of  this  fraud,  has  fled  the  state, 


Ch.  5)  RIGHTS   OF   A    HOLDER   OF   A    BILL   OF   LADING.  187 

and  is  insolvent.  The  bank,  or  the  railroad  company,  must  suffer. 
Who,  under  all  the  circumstances,  ought  to  bear  the  loss?  The  su- 
perior equity  is  with  the  bank.  It  advanced  moneys  on  certain  rep- 
resentations which  were  virtually  untrue.  In  this  case,  is  presented 
every  element  to  constitute  an  estoppel  in  pais,  within  the  doctrine 
that,  where  one  of  two  innocent  persons  must  suffer  by  reason  of  the 
fraud  or  misconduct  of  a  third,  he  by  whose  act,  omission,  or  negli- 
gence, such  third  party  was  enabled  to  consummate  the  fraud,  ought 
to  bear  the  loss.  Thus  the  defendant  was  liable,  and  the  court  below 
committed  error  in  holding  otherwise. 

We  agree  with  the  counsel  for  the  defendant,  that  a  bill  of  lading 
is  not  a  negotiable  instrument,  and  with  much  that  is  stated  in  their 
brief  concerning  the  character  of  these  instruments  in  general.  But 
most  of  the  decisions  referred  to  by  them  contain  discussions  of  the 
negotiability  of  this  class  of  paper,  and  are  not  strictly  authority,  as 
the  defendant's  liability  does  not  depend  upon  the  negotiable  character 
of  bills  of  lading.  Probably  it  would  be  beneficial  to  the  commercial 
interests  of  the  state,  for  the  lawmaking  power  to  make  these  instru- 
ments negotiable  in  all  the  meaning  these  words  imply;  but  in  the 
absence  of  such  legislation  the  defendant  ought  not  to  have  authority 
to  issue  bills  of  lading  for  grain,  and  thus  put  it  in  the  power  of  the 
holder  thereof  to  treat  with  the  public  on  the  representation  made  in 
them,  and  then,  when  money  has  been  advanced  on  the  faith  of  such 
statements,  by  innocent  parties  dealing  in  such  paper  in  the  regular 
course  of  business,  contradict  the  representations  of  the  paper,  and 
thereby  injure  the  persons  who  have  been  misled.  The  principle  of 
estoppel  does  and  ought  in  such  cases  to  apply. 

The  judgment  of  the  district  court  will  be  reversed,  and  the  case  re- 
manded, with  instructions  to  enter  judgment  for  the  plaintiff  for  the 
amount  stated  in  the  agreed  statement  of  facts,  with  costs.  All  the 
justices  concurring.* 

4  See,  also,  Coventry  v.  Gt.  East.  Ry.  Co.,  11  Q.  B.  D.  770  (1SS.3).  In  Glyn 
Mills  &  Co.  V.  East  &  West  India  Dock  Co..  7  App.  Cas.  591  (18812).  bills  of  lad- 
ing were  issued  in  triplicate,  each  containing  the  clause,  "In  witness  whereof 
the  master  or  purser  of  the  said  ship  hath  affirmed  to  three  bills  of  lading, 
all  of  this  tenor  and  date,  the  one  of  which  bills  being  accomplished,  the  others 
to  stand  void."  The  shippers  indorsed  and  delivered  one  of  the  bills  to  the 
plaintiffs  as  security  for  an  advance,  but  afterwards  obtained  the  cargo  them- 
selves bv  presenting  another  unindorsed  bill.  The  dock  company  was  held  to 
be  excused  for  the  delivery,  because  the  master  to  whose  duty  it  had  succeeded 
would  have  been  excused.  Lord  Blackburn  said:  "I  have  never  been  able  to 
learn  why  merchants  and  shipowners  continue  the  practice  of  making  out  a 
bill  of  lading  in  parts.  I  should  have  thought  that,  at  least  since  the  introduc- 
tion of  quick  and  regular  communication  by  steamers,  and  still  more  since  the 
establishment  of  the  electric  telegraph,  every  purpose  would  be  answered  by 
making  one  bill  of  lading  only,  which  should  be  the  sole  document  of  title,  and 
taking  as  many  copies,  certified  hy  the  master  to  be  true  copies,  as  it  is  thought 
convenient.  Those  copies  would  suffice  for  every  legitimate  purpose  for  which 
the  other  parts  of  the  bill  can  now  be  applied,  but  could  not  be  used  for  the 
Durpose  of  pretending  to  be  the  holder  of  a  bill  already  parted  with.  *  *  * 
I  think,  also,  that  the  only  reasonable  construction  to  be  put  upon  the  clause 


188  THE  carrier's  undertaking.  (Part  2 


RATZER  V.  BURLINGTON,  C.  R.  &  N.  RY.  CO. 

(Supreme  Court  of  Minnesota,  1S9G.    G4  Minn.  245,  G6  N.  W.  988,  58  Am.  St. 

Rep.  530.) 

Canty,  J.^  The  ^Morrison  Grain  &  Lumber  Company  shipped  three 
car  loads  of  oats,  two  from  Britt,  and  one  from  Forrest  City,  Iowa, 
to  New  York  City.  One  of  these  cars  was  shipped  on  January  5,  and 
the  other  two  on  January  7,  1895.  A  bill  of  lading  was  issued  for 
each  car  by  the  initial  carrier.  In  each  bill  the  shipper  is  named  as 
consignee,  with  the  addition,  "Notify  John  Ratzer;"  and  the  destina- 
tion named  is  New  York  City.  The  initial  carrier  transported  the 
cars  to  Livermore,  Iowa,  and  there  delivered  them  (with  proper  way- 
bills, showing  New  York  to  be  the  destination)  to  the  defendant,  the 
next  connecting  carrier,  with  whom  and  a  subsequent  carrier  it  had 
through  traffic  arrangements.  The  defendant  carried  the  cars  on  its 
line  towards  their  destination  until  they  reached  Morrison,  Iowa,  on 
January  8th  or  9th,  and  there  delivered  all  of  the  oats  (of  the  value 
of  $1,336)  to  the  shipper,  on  its  demand,  without  requiring  a  surrender 
or  cancellation  of  the  bills  of  lading.  The  shipper  at  this  point  con- 
verted the  oats  to  its  own  use. 

Within  a  day  or  two  after  the  oats  were  so  delivered  at  Morrison, 
the  shipper  indorsed  each  of  the  bills  of  lading,  "Deliver  to  the  order 
of  John  Ratzer,"  and  signed  them.  The  shipper  also  drew  drafts  on 
said  Ratzer,  this  plaintiff,  in  favor  of  the  Bank  of  Reinbeck,  for  the 
amount  of  the  purchase  price  of  the  oats,  attached  the  drafts  to  the 
bills  of  lading,  and  delivered  all  of  the  same  to  the  bank,  who  cashed 
the  drafts  in  good  faith,  in  the  regular  course  of  business,  relying 
on  the  attached  bills  of  lading.  The  bills  of  lading  were,  in  the  reg- 
ular course  of  business,  forwarded  by  the  bank  to  New  York,  and 
presented  to  Ratzer,  a  commission  merchant  there,  dealing  in  grain, 
who  on  January  14  and  16,  1895,  in  the  regular  course  of  business, 
paid  the  drafts  in  good  faith,  relying  on  the  attached  bills  of  lading, 
which  he  then  and  there  received.  If  the  three  cars  of  oats  had  contin- 
ued to  New  York,  their  destination,  in  the  usual  course  of  transpor- 

at  tlie  end  of  the  bill  of  lading  is  that  the  shipowner  stipulates  that  he  shall 
not  be  liable  on  this  contract  if  he  bona  fide,  and  without  notice  or  knowledge 
of  anything  to  make  it  wrong,  delivers  to  a  person  producing  one  part  of  the 
bill  of  lading,  designating  him — either  as  being  the  person  named  in  the  bill 
if  it  has  not  been  indorsed,  or  if  there  be  a  genuine  indorsement  as  being  as- 
sign— as  the  person  to  whom  the  goods  are  to  be  delivered.  In  that  case,  as 
against  the  shipowner,  the  other  bills  are  to  stand  void.  Even  without  that 
clause  I  should  say  that  the  case  falls  within  the  principle  laid  down  as  long 
ago  as  the  reign  of  James  I  in  Watts  v.  Ognell,  Cro.  Jac.  192.  'That  depends,' 
says  Willes,  J.,  in  De  Nieholls  v.  Saunders,  L.  R.  5  C.  P.  594,  'upon  a  rule  of 
general  jurisprudence,  not  confined  to  choses  in  action,  though  it  seems  to  have 
been  lost  sight  of  in  some  recent  cases,  viz.,  that  if  a  person  enters  into  a  con- 
tract, and  without  notice  of  any  assignment  fulfills  it  to  the  person  with  whom 
he  made  the  contract,  he  is  discharged  from  his  obligation.'  The  equity  of  this- 
is  obvious." 
*  Parts  of  the  opinion  are  omitted. 


Ch.  5)  RIGHTS    OF   A    HOLDER    OF   A    BILL    OF   LADING.  189 

tation,  they  would  have  arrived  there  between  January  23d  and  30th. 
The  shipper,  the  Morrison  Company,  is  wholly  insolvent.  Plaintiff 
brought  this  action  to  recover  $801.94,  the  amount  so  advanced  by  him 
on  the  faith  of  the  bills  of  lading.  The  case  v/as  tried  by  the  court 
below,  without  a  jury.  The  court  found  all  of  the  foregoing  facts, 
and  thereon  ordered  judgment  for  defendant.  From  the  judgment 
entered  thereon,  plaintiff'  appeals,  and  urges,  as  a  ground  for  reversal, 
that  the  judgment  is  not  sustained  by  the  findings  of  fact. 

We  are  of  the  opinion  that,  on  the  facts  found,  the  plaintiff  is  en- 
titled to  judgment.  A  vast  portion  of  the  produce  of  this  country  is 
moved  from  the  agricultural  districts  to  the  commercial  centers  and 
the  seaboards  by  the  aid  of  advances  made  on  the  'security  of  such 
bills  of  lading.  A  well-established  custom  has  grown  up  in  commer- 
cial circles  by  which  such  bills  of  lading  are  treated  as  the  symbols 
of  title  to  the  property  in  transit,  are  taken  as  security  for  money 
advanced,  and  indorsed  and  delivered  as  a  transfer  of  the  property. 
This  is  well  understood  by  the  railroad  companies  and  every  one  else. 
To  allow  the  railroad  companies  to  ignore  this  custom  would  be  to 
destroy  the  custom  itself.  This  would  cause  great  hardship,  revolu- 
tionize business  methods,  and  drive  all  buyers  and  shippers  of  small 
means  out  of  the  business,  as  they  could  no  longer  give  ready  and 
available  security  on  commodities  in  transit,  and  thereby  turn  their 
limited  capital  sufficiently  quickly  and  often  to  enable  them  to  do  much 
business.  This,  in  turn,  would  destroy  competition,  and  leave  the 
business  in  the  hands  of  a  few  concerns  with  unlimited  capital.  Nei- 
ther have  the  railroad  companies  any  right  to  ignore  this  custom.  On 
the  contrary,  it  must  be  held  that  these  companies  have  been  doing 
business  with  reference  to  this  custom  as  much  as  the  shippers  them- 
selves and  the  consignees,  banks,  commission  merchants,  and  others 
who  are  continually  advancing  money  on  the  faith  of  the  security  of 
these  bills  of  lading.  The  effect  of  this  custom,  independent  of  sec- 
tion 7649,  Gen.  St.  1894,  is  to  make  bills  of  lading  to  some  extent  and 
for  some  purposes  negotiable,  and  to  give  superior  rights  to  inno- 
cent transferees  for  value  in  the  usual  course  of  business.     *    *     '•' 

Respondent  contends  that  the  consignee  is  only  obliged  to  produce 
the  bill  of  lading,  but  not  to  surrender  it  when  receiving  the  goods; 
and  that  as  the  l^lorrison  Company  held  the  bill  of  lading  when  the 
oats  were  delivered  to  it  in  transit,  and  it  did  not  negotiate  the  bill  of 
lading  until  afterwards,  the  defendant  is  not  liable  for  so  delivering 
the  oats  without  requiring  a  surrender  of  the  bill  of  lading.  Whether 
or  not  the  carrier  can  compel  a  surrender  of  the  bill  of  lading  when 
it  delivers  the  goods  it  is  not  necessary  here  to  decide.'  If  the  holder 
of  the  bill  of  lading  insists  on  retaining  it  as  a  muniment  of  title,  or 
for  any  other  purpose,  and  has  a  legal  right  to  do  so,  he  can,  at  least, 
be  required  to  produce  it  for  cancellation,  so  that  it  will  cease  to  be 

6  See  Dwyer  v.  Gulf,  eta,  Ry.  Co.,  69  Tex.  707,  7  S.  W.  504  (1888). 


190  THE   CAIUUER's   UNDERTAKING.  (Part  2 

on  its  face  a  live  bill  of  lading.  And,  in  our  opinion,  it  was  the  duty 
of  the  defendant  at  least  to  require  this.  It  is  immaterial  that  these 
bills  of  lading  were  negotiated  to  the  bank  and  plaintiff  after  the  oats 
were  so  delivered  to  the  shipper.  The  bills  were  so  negotiated  before 
they  had  become  stale,  and  even  a  considerable  length  of  time  before 
the  oats  would,  in  the  ordinary  course  of  transportation,  have  arrived 
at  New  York,  their  destination.  The  defendant  permitted  these  bills 
to  remain  outstanding,  with  all  the  appearances  of  live,  valid  bills  of 
lading.  There  was  nothing  to  put  any  one  dealing  with  the  ^lorrison 
Company  on  his  guard.    *    *     * 

It  was  the  duty  of  the  defendant  to  see  that  the  bills  of  lading  were 
canceled  when  it  redelivered  the  oats  to  the  shipper,  and  its  failure 
to  perform  that  duty  enabled  the  shipper  to  perpetrate  a  fraud  on  the 
bank  and  plaintiff.  It  is  a  case,  for  the  application  of  the  doctrine  of 
equitable  estoppel,  that,  w^ere  one  of  two  innocent  persons  must  suf- 
fer by  reason  of  the  fraud  of  a  third  party,  he  by  whose  negligent  act 
or  omission  such  third  party  was  enabled  to  commit  the  fraud  ought 
to  bear  the  loss.  Under  this  rule,  the  defendant  is  estopped  from 
showing  that  it  delivered  the  goods  to  the  shipper  at  the  intermediate 
point,  and  is  liable  to  plaintiff"  for  failure  to  deliver  them  to  him  at 
the  place  of  original  destination.     This  disposes  of  the  case. 

The  judgment  is  reversed,  and  judgment  ordered  for  plaintiff',  pur- 
suant to  this  opinion.' 

T  Ace.  Union  Pac.  Ry.  Co.  v.  .Tolmson,  45  Neb,  57.  63  N.  "W,  144,  50  Am.  St. 
Rep.  540  (189.5).  See  Midland  Nat.  Bk.  v.  Mo.  Tac.  Ry.  Co..  132  Mo.  4;t2.  33  S. 
W.  521,  53  Am.  St.  Rep.  .505  (1895) ;  also  Pollard  v.  Reardou,  G5  Fed.  848.  852, 
13  C,  C.  A,  171  (1895),  sale  of  goods  in  transit  by  one  wbom  prior  purobaser 
had  i>ermitted  to  retain  bill  of  lading ;  Am.  Zinc  Co.  v,  Markle  Lead  Works, 
102  Mo.  App.  158.  7(!  S.  W.  6GS  (1903),  sale  by  one  wbom  owner  bad  permitted  to 
take  ont  bill  of  lading.  Compare  Mercbants'  Nat,  Bk.  v.  Baltimore,  etc.,  Co,, 
102  Xld.  573,  m  Atl.  108  (1900).  spent  bill  negotiated  by  frandnlent  alteration. 

As  to  tbe  liability  to  a  later  indorsee  of  a  carrier  wbo  fails  to  take  up  tbe 
bill  of  lading  on  delivery  at  destination,  see  Alabama  Nat.  Bk.  v.  Mobile  &  O. 
Rv.  Co.,  42  Mo.  App.  2s4  (1890) ;  Mairs  v.  Bait.  &  O.  R.  Co.,  73  App.  Div.  265. 
76'  N.  Y.  Supp.  8.38  (1902) ;  Greenwood  Grocery  Co.  v.  Canadian  El.  Co.,  72  S, 
C.  450,  454,  52  S.  R  191,  2  L.  R.  A.  (N.  S.)  79,  110  Am.  St.  Rep.  627  (1905) ; 
Harttie  v.  Vicksbnrg,  etc.,  Co.,  118  La.  25.3,  42  South.  793  (1!K)7),  statutory.  See 
also,  Nebraska  Meal  Mills  v.  St.  Louis  S.  W.  Ry.  Co..  ante.  p.  155. 

In  Chesapeake  S.  S.  Co.  v.  Merchants"  Nat.  Bk.,  102  Md.  .589.  63  Atl.  113 
(1906),  bills  of  lading  to  shipper's  order  having  the  words  "Not  negotiable" 
printed  on  their  face,  provided:  "The  surrender  of  the  bills  of  lading  i)rop- 
erly  indorsed  shall  be  required  before  the  delivery  of  the  property  at  destina- 
tion." Page,  J.,  said:  "We  have  held  in  the  preceding  case  that  the  obligation 
of  the  appellant  to  require  the  surrender  of  the  bill  of  lading  when  the  goods 
are  delivered  was  a  provision  intended  for  the  protection  of  all  who  dealt 
with  the  goods.  To  deliver  the  goods  without  such  surrender  was  therefore 
the  ecpiivaleut  of  a  declaration  that  the  goods  were  still  in  the  carrier's  ix)S- 
session.  If,  therefore,  it  had  in  fact  parte<l  with  the  ix»ssession  without  such 
requirement,  there  was  a  breach  of  its  duty  to  a  party  who  had  a  right  to 
rely,  and  did  rely,  upon  the  implied  assurance;  and  such  party  can  bring  a 
suit  in  his  own  name  to  recover  damages.  This  question  does  not  depend  upon 
the  negotiability  of  the  bill,  nor  upon  whether  the  party  injured  may  bring  an 
action  ex  contractu  for  his  damages." 


Ch.  5)  EIGHTS   OF   A   HOLDER    OF   A   BILL   OF    LADING.  191 

ELLIS  V.  WILLARD. 

(Court  of  Appeals  of  New  York,  1854.    9  N.  Y.  529.) 

*  *  *  This  was  an  action  to  recover  a  balance  due  for  the  freight 
of  certain  goods  transported  by  the  plaintiff  for  the  defendant  upon  the 
Chenango  Canal,  for  which  bills  of  lading  had  been  given,  in  the  usual 
form,  acknowledging  that  the  property  had  been  shipped  in  good  or- 
der, and  agreeing  to  deliver  the  same,  in  like  good  order,  at  the  places 
of  destination.  A  portion  of  the  merchandise  for  which  freight  was 
claimed  consisted  of  dry  hides,  which  were  shipped  at  Buffalo,  to  be 
transported  to  Utica.  The  referee  found  that  a  part  of  the  hides 
were  wet  and  in  bad  order  when  delivered  at  Utica,  and  that  they 
were  in  like  bad  order  when  received  by  the  plaintiff,  at  Buffalo. 
*  *  *  The  referee  reported  a  judgment  in  favor  of  the  plaintiff 
for  $6,297,  the  whole  balance  due  for  freight,  according  to  the  con- 
tract price;  and,  the  judgment  entered  on  his  report  having  been 
affirmed  at  General  Term,  the  defendant  took  this  appeal. 

Allen,  J.^  The  bills  of  lading  signed  by  the  plaintiff  were  in  the 
usual  form,  acknowledging  that  the  property  was  shipped  in  good  order, 
and  agreeing  to  deliver  the  same  at  the  places  of  destination  in  like  good 
order.  It  is  claimed  by  the  defendant  that  by  it  the  plaintiff  is  estop- 
ped from  showing  the  true  condition  of  the  property  at  the  time  of 
shipment,  and  the  principal  exception  in  the  case  is  to  the  decision  of 
the  referee  admitting  evidence  upon  that  point,  and  in  giving  effect 
to  it  in  his  final  report,  and  exonerating  the  plaintiff  from  liability 
upon  proof  that  the  hides  were  in  a  damaged  condition,  when  shipped. 

The  statement  of  the  condition  of  the  property  in  the  bill  of  lading 
constitutes  no  part  of  the  contract  of  affreightment,  and  the  relation 
of  the  parties  and  the  nature  of  the  contract  will  not  allow  us  to  call 
it  a  contract  of  warranty.  If  it  was  a  part  of  the  agreement  between 
the  parties,  as  is  claimed  by  the  defendant,  then  the  referee  erred  in 
the  admission  of  parol  evidence  to  vary  it.  But,  like  the  statement 
in  respect  to  the  quantity  and  amount  of  the  property,  it  is  but  a 
declaration— an  admission  by  the  party  signing  it— and  is  no  more 
conclusive  than  any  other  acknowledgment  or  admission.  It  is  prima 
facie  evidence  of  the  fact  stated,  and  casts  the  burden  of  proving  it 
otherwise  upon  the  party  making  it.  An  admission  or  declaration  is 
never  conclusive,  whether  made  in  writing  or  verbally,  as  a  mere  ad- 
mission or  declaration  not  acted  upon.  It  may  become  so,  or  rather 
the  party  may  be  estopped  from  contradicting  it,  as  against  one  who 
has  acted  upon  the  faith  of  it,  and  has  parted  with  property  relying 
upon  the  truth  of  the  statement.  A  shipowner  may  be  estopped  from 
alleging  a  deficiency  in  the  property  shipped,  as  against  a  consignee 
who  has  advanced  money  upon  the  credit  of  the  bill  of  .lading.     But 

8  Parts  of  the  stateirev.t  of  facts  and  opinions  are  omitted. 


192  THE  carrier's  undertaking.  (Part  2 

receipts  and  admissions,  as  such,  are  always  open,  as  between  the  par- 
ties, to  explanation,  and  are  impeachable  for  any  mistake,  error,  or 
false  statement  contained  in  them;  in  a  word,  they  may  always  be 
contradicted,  varied,  or  explained  by  parol  testimony.  1  Phil.  Ev. 
107;  1  Cow.  &  Hill's  Notes,  313,  note  191;  3  Stark.  Ev.  1271;  Tobey 
V.  Barber,  5  Johns.  68,  4  Am.  Dec.  32G.  A  bill  of  lading  is  not  an 
exception  to  the  rule;  and  that  part  of  the  bill  which  relates  to  the 
receipt  of  the  goods,  their  quality,  condition,  and  quantity,  is  treated 
as  a  receipt,  as  distinct  from  the  contract.  Barrett  v.  Rogers,  7  Mass. 
297,  5  Am.  Dec.  45;  Graves  v.  Harwood,  9  Barb.  477;  Dickerson 
V.  Seelye,  12  Barb.  99 ;  Price  v.  Powell,  3  N.  Y.  322 ;  Maryland  In- 
surance Co.  V.  Ruden's  Adm'r,  6  Cranch,  338;  Berkley  v.  Watling, 
7  Ad.  &  E.  29.  The  contract,  so  far  as  it  is  evidenced  by  the  bill  of 
lading,  is  not  liable  to  be  thus  affected  by  parol  evidence.  Creery  v. 
Holly,  14  Wend.  26. 

There  is  no  reason,  and  no  direct  authority,  for  holding  that  a  bill 
of  lading  can  be  contradicted  as  to  the  condition  of  the  goods,  when 
they  are  not,  at  the  time  of  shipment,  in  a  situation  to  be  inspected, 
and  that  a  different  rule  prevails  when  the  goods  may  be  seen  and 
handled  by  the  shipowner.  If  it  is  a  part  of  the  contract,  then,  in  no 
case,  in  the  absence  of  fraud,  can  it  be  varied  by  parol;  if  it  is  a 
receipt,  then  it  is  subject  to  all  the  rules  by  which  that  class  of  instru- 
ments are  governed.  The  contract  is  merely  to  deliver  in  the  like 
good  order  as  received,  and  when  the  condition  is  ascertained,  either 
by  the  admission  in  the  bill  of  lading,  or  proof  aliunde,  the  duty  of 
the  party  is  fixed.    *     *     * 

Denio,  J.  *  *  *  The  substance  of  the  carrier's  contract  was  to 
transport  and  deliver  the  property  at  its  destination,  without  causing 
or  permitting  any  damage  to  be  done  to  it.  Parol  evidence  could  not 
be  allowed  to  change  the  effect  of  this  undertaking.  Creery  v.  Holly, 
14  Wend.  26.  The  other  part  of  the  bill  is  only  the  acknowledgment 
of  a  fact,  which,  though  strong  evidence  against  him,  may  be  over- 
come by  satisfactory  proof  that  it  was  erroneous.    *    *     * 

Judgment  affirmed.® 


NATIONAL  BANK  OF  COMMERCE  v.   CHICAGO,  B.   & 

N.  R.   CO. 

(Supreme  Court  of  Minnesota,  1890.    44  Minn.  2^4,  4G  N.  W.  342,  560,  9  L.  R.  A. 
2G3,  20  Am.  St.  Rep.  500.) 

An  elevator  company  which  had  contracted  to  sell  wheat  to  Mouk 
&  Co.  loaded  the  wheat  on  cars  of  the  defendant  railroad  company, 
which  were  standing  on  a  spur  track  beside  their  elevator,  sent  Mouk 

9  As  to  ttie  interpretation  and  effect  of  a  stipulation  in  a  bill  of  lading  that 
its  recitals  shall  be  conclusive,  see  Sawyer  v.  Cleveland  Iron  Miu.  Co.,  69  Fed. 
211,  16  C.  C.  A.  191  (1895) ;  aiediterranean,  etc.,  Co.  v.  Mackay.  [1903]  1  K.  B. 
297. 


Ch.  5)  EIGHTS    OF   A    HOLDER   OF   A    BILL   OF   LADING.  193 

&  Co.  a  bill  for  the  wheat,  and  received  from  Mouk  &  Co.  a  check 
for  the  price.  Mouk  &  Co.  obtained,  from  the  agent  of  defendant 
railroad,  bills  of  lading  naming  them  as  consignors  and  persons  in  Il- 
linois and  Wisconsin  as  consignees.  They  drew  drafts  on  the  con- 
signees and  sold  them  to  the  plaintiff  bank  with  the  bills  of  lading 
attached.  Next  day  Mouk  &  Co.'s  check  was  dishonored,  and  the 
elevator  company  took  the  wheat  from  the  cars  and  put  it  back  into 
the  elevator.  The  drafts  were  not  paid  when  due,  and  the  bank 
brought  this  action  for  the  value  of  the  wheat.  It  was  tried  together 
with  other  suits  arising  from  the  same  set  of  transactions.  The  trial 
court  found  that  the  wheat  had  been  delivered  to  the  railroad  company, 
and  had  become  the  property  of  Mouk  &  Co.,  and  that  the  railroad 
was  liable  to  the  bank  for  failure  to  deliver  it.  The  Supreme  Court 
held  that  the  act  of  the  elevator  company  in  putting  the  wheat  on 
the  cars  was  not,  on  the  evidence,  a  delivery  to  the  railroad,  and 
did  not  put  the  wheat  into  the  railroad's  possession ;  that,  if  the  eleva- 
tor company  did  deliver  to  Mouk  &  Co.  by  accepting  their  check,  the 
delivery  was  only  conditional  on  payment  of  the  check ;  and  that  when 
the  check  was  dishonored  it  had  a  right  to  resume  possession. 

Mitchell,  J.  (after  stating  the  foregoing  matters  of  fact  and 
Iaw).^°  It  only  remains  to  consider,  in  the  bank  cases,  the  effect  of 
the  bills  of  lading  upon  the  liability  of  the  railway  companies  to  the 
bank,  in  case  no  wheat  was  in  fact  ever  delivered  to  them  for  trans- 
portation. Of  course,  if  the  wheat  was  delivered  by  the  elevator  com- 
pany to  Mouk  &  Co.,  and  by  the -latter  to  the  railway  companies  for 
transportation,  and  the  agent  of  the  railway  companies  in  good  faith 
issued  the  bills  of  lading,  the  railway  companies  would  not  be  liable, 
for  it  is  always  a  good  defense  to  a  carrier,  even  against  an  innocent 
indorsee  of  the  bill  of  lading,  that  the  property  was  taken  from  its 
possession  by  one  having  a  paramount  title,  as  was  the  title  of  the 
elevator  company  in  this  case  as  unpaid  vendor.  A  carrier,  in  issuing 
a  bill  of  lading  for  property  delivered  to  him  for  transportation,  does 
not  warrant  the  title  of  the  shipper.  But  what  is  the  rule  where  no 
property  was  ever  delivered  at  all  for  transportation,  and  the  agent 
of  the  carrier,  either  fraudulently,  or  through  mistake  or  negligence, 
issues  a  false  bill  of  lading,  which  passes  into  the  hands  of  a  bona 
fide  consignee  or  indorsee  for  value?  There  is  an  unbroken  line  of 
authorities  in  England  that,  even  as  against  a  bona  fide  consignee  or 
indorsee  for  value,  the  carrier  is  not  estopped  by  the  statements  of 
the  bill  of  lading  issued  by  his  agent,  from  showing  that  no  goods 
were  in  fact  received  for  transportation.  Grant  v.  Norway  (1851)  10 
C.  B.  665;  Coleman  v.  Riches  (1855)  16  C.  B.  101;  Hubbersty  v.  Ward 
(1853)  8  Ex.  330;  Brown  v.  Coal  Co.  (1875)  L.  R.  10  C.  P.  563;  Mc- 

if  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion 
omitted. 

Green  Carr. — 13 


194  THE  carrier's  undertaking.  (Part  2 

Lean  &  Hope  v.  Fleming  (1871)  L.  R.  2  H.  L.  Sc.  128;  Cox,  Patterson 
&  Co.  V.  Bruce  &  Co.  (1886)  18  Q.  B.  D.  14:  ;  IMever  v.  Dresser  (1864) 
16  C.  B.  (N.  S.)  616;  Jessel  v.  Bath  (1867)  L.  R.'2  Ex.  267.  And  this 
has  not  been  at  all  changed  by  the  "bills  of  lading  act"  (18  &  19  Vict. 
c.  Ill,  §  3).  It  is  also  the  settled  doctrine  of  the  federal  courts.  The 
Freeman  v.  Buckingham  (1855)  18  How.  182,  15  L.  Ed.  311;  The 
Lady  Franklin  (1868)  8  Wall.  325,  19  L.  Ed.  455;  Pollard  v.  Vinton 
(1881)  105  U.  S.  7,  26  L.  Ed.  998;  Railway  Co.  v.  Knight  (1887)  122 
U.  S.  79,  7  Sup.  Ct.  1132,  30  L.  Ed.  1077;  Friedlander  v.  R.  Co. 
(1889)  130  U.  S.  416,  9  Sup.  Ct.  570,  32  L.  Ed.  991.    *     *    * 

The  case  of  The  Lady  Franklin  did  riot  involve  the  question  of  a 
bona  fide  purchaser,  but  is  important  as  announcing  that  the  principle 
is  the  same,  whether  the  false  bill  of  lading  is  issued  fraudulently  or 
by  mistake.  But,  in  view  of  the  later  cases  cited  above,  there  is  no 
room  to  doubt  that  that  court  is  firmly  committed  to  the  doctrine  in  its 
broadest  scope.  The  same  rule  obtains  in  Massachusetts,  Alaryland, 
Louisiana,  Missouri,  North  Carolina,  and  apparently  Ohio.  Sears  v. 
Wingate  (1861)  3  Allen,  103;  Railway  Co.  v.  Wilkens  (1876)  44 
Md.  11,  22  Am.  Rep.  26;  Fellows  v.  The  Powell  (1861)  16  La.  Ann. 
316,  79  Am.  Dec.  581;  Hunt  v.  Railway  Co.  (1877)  29  La.  Ann. 
446;  Bank  v.  Laveille  (1873)  52  Mo.  380;  Williams  v.  Railway  Co., 
93  N.  C.  42,  53  Am.  Rep.  450;  Dean  v.  King,  22  Ohio  St.  118.  The 
text-writers  all  agree  that  the  overwhelming  weight  of  authority  is 
on  this  side.     See  38  Am.  Dec.  410  (note  to  Chandler  v.  Sprague). 

The  reasoning  by  which  this  doctrine  is  usually  supported  is  that  a 
bill  of  lading  is  not  negotiable  in  the  sense  in  which  a  bill  of  exchange 
or  promissory  note  is  negotiable,  where  the  purchaser  need  not  look 
beyond  the  instrument  itself;  that  so  far  as  it  is  a  receipt  for  the 
goods  it  is  susceptible  of  explanation  or  contradiction,  the  same  as 
any  other  receipt ;  that  the  whole  question  is  one  of  the  law  of 
agency;  that  it  is  not  within  the  scope  of  the  authority  of  the  ship- 
ping agent  of  a  carrier  to  issue  bills  of  lading  where  no  property  is 
in  fact  received  for  transportation;  that  the  extent  of  his  authority, 
either  real  or  apparent,  is  to  issue  bills  of  lading  for  freight  actually 
received;  that  his  real  and  apparent  authority — i.  e.,  the  power  with 
which  his  principal  has  clothed  him  in  the  character  in  which  he  is 
held  out  to  the  world — is  the  same,  viz.,  to  give  bills  of  lading  for 
goods  received  for  transportation;  and  that  this  limitation  upon  his 
authority  is  known  to  the  commercial  world,  and  therefore  any  per- 
son purchasing  a  bill  of  lading  issued  by  the  agent  of  a  carrier  acts 
at  his  own  risk  as  respects  the  existence  of  the  fact  (the  receipt  of  the 
goods)  upon  which  alone  the  agent  has  authority  to  issue  the  bill,  the 
rule  being  that,  if  the  authority  of  an  agent  is  known  to  be  open  for 
exercise  only  in  a  certain  event,  or  upon  the  happening  of  a  certain 
contingency,  or  the  performance  of  a  certain  condition,  the  occurrence 
of  the  event,  or  the  happening  of  the  contingency,  or  the  performance 


Ch.  5)  BIGHTS   OF   A    HOLDER   OF   A    BILL   OF   LADING.  195 

of  the  condition,  must  be  ascertained  by  him  who  would  avail  himself 
of  the  results  ensuing  from  the  exercise  of  the  authority. 

An  examination  of  the  authorities  also  shows  that  they  apply  the 
same  principle  whether  the  bill  of  lading  was  issued  fraudulently  and 
collusively  or  merely  by  mistake.  The  only  states  that  we  have  found 
in  which  a  contrary  rule  has  been  adopted  are  New  York,  Kansas, 
Nebraska,  apparently  Illinois,  and  perhaps  Pennsylvania.  Armour 
V.  Railway  Co.,  65  N.  Y.  Ill,  22  Am.  Rep.  603 ;  Bank  of  Batavia  v. 
New  York,  etc.,  R.  Co.,  106  N.  Y.  195,  12  N.  E.  433,  60  Am.  Rep. 
440 ;  Sioux  City,  etc.,  R.  Co.  v.  First  Nat.  Bank,  10  Neb.  556,  7  N.  W. 
311,  35  Am.  Rep.  488 ;  Railroad  Co.  v.  Larned,  103  111.  293 ;  Brooke  v. 
Railroad  Co.,  108  Pa.  529,  1  Atl.  206,  56  Am.  Rep.  235.  The  reason- 
ing of  these  cases  is  in  substance  that  the  question  does  not  at  all  de- 
pend upon  the  negotiability  of  bills  of  lading,  but  upon  the  principle 
of  estoppel  in  pais ;  that  where  a  principal  has  clothed  an  agent  with 
power  to  do  an  act  in  case  of  the  existence  of  some  extrinsic  fact,  nec- 
essarily and  peculiarly  within  the  knowledge  of  the  agent,  and  of  the 
existence  of  which  the  act  of  executing  the  power  is  itself  a  represen- 
tation, the  principal  is  estopped  from  denying  the  existence  of  the  fact, 
to  the  prejudice  of  a  third  person,  who  has  dealt  with  the  agent  or 
acted  on  his  representation  in  good  faith  in  the  ordinary  course  of 
business.  This  rule  this  court  in  effect  adopted  and  applied  in  Mc- 
Cord  v.  Telegraph  Co.,  39  Minn.  181,  39  N.  W.  315,  318,  1  L.  R.  A. 
143,  12  Am.  St.  Rep.  636. 

It  is  urged  that  force  is  added  to  this  reasoning  in  view  of  the  fact 
that  bills  of  lading  are  viewed  and  dealt  with  by  the  commercial  world 
as  quasi  negotiable,  and  consequently  it  is  desirable  that  they  should  be 
viewed  with  confidence  and  not  distrust;  and  that  for  these  considera- 
tions it  is  better  to  cast  the  risk  of  the  goods  not  having  been  shipped 
upon  the  carrier,  who  has  placed  it  in  the  power  of  agents  of  his  own 
choosing  to  make  these  representations,  rather  than  upon  the  innocent 
consignee  or  indorsee,  who,  as  a  rule,  has  no  means  of  ascertaining 
the  fact.  If  the  question  was  res  integra  w'e  confess  that  it  seems  to 
us  that  this  argument  would  be  very  cogent.  But  on  the  other  hand, 
it  may  be  said  that  carriers  are  not  in  the  business  of  issuing  and 
dealing  in  bills  of  lading  in  the  same  sense  in  which  bankers  issue  and 
deal  in  bills  of  exchange;  that  their  business  is  transporting  property, 
and  that  if  the  statements  in  the  receipt  part  of  bills  of  lading  issued 
by  any  of  their  numerous  station  or  local  agents  are  to  be  held  con- 
clusive upon  them,  although  false,  it  would  open  so  wide  a  door  for 
fraud  and  collusion  that  the  disastrous  consequences  to  the  carrier 
would  far  outweigh  the  inconvenience  resulting  to  the  commercial 
world  from  the  opposite  rule.  It  is  also  to  be  admitted  that  it  re- 
quires some  temerity  to  attack  either  the  policy  or  the  soundness  of  a 
rule  which  seems  to  have  stood  the  test  of  experience,  which  has  been 
approved  by  so  many  eminent  courts,  and  under  which  the  most  suc- 
cessful commercial  nation  in  the  world  has  developed  and  conducted 


196  THE  cauiuer's  undertaking.  (Part  2 

her  vast  commerce  ever  since  the  inception  of  carriers'  bills  of  lading. 
But  on  questions  of  commercial  law  it  is  eminently  desirable  that  there 
be  uniformity.  It  is  even  more  important  that  the  rule  be  uniform 
and  certain  than  that  it  be  the  best  one  that  might  be  adopted. 

Moreover,  on  questions  of  general  commercial  law  the  federal 
courts  refuse  to  follow  the  decisions  of  the  state  courts,  and  deter- 
mine the  law  according  to  their  own  views  of  what  it  is.  It  is  there- 
fore very  desirable  that  on  such  questions  the  state  courts  should  con- 
form to  the  doctrine  of  the  federal  courts.  The  inconvenience  and 
confusion  that  would  follow  from  having  two  conflicting  rules  on  the 
same  question  in  the  same  state,  one  in  the  federal  courts  and  another 
in  the  state  courts,  is  of  itself  almost  a  sufficient  reason  why  we  should 
adopt  the  doctrine  of  the  federal  courts  on  this  question.  To  do  oth- 
erwise, so  long  as  the  jurisdiction  of  those  courts  so  largely  depends 
on  the  citizenship  of  suitors,  would  really  result  in  discrimination 
against  our  own  citizens.  In  deference,  therefore,  to  the  overwhelm- 
ing weight  of  authority,  but  without  committing  ourselves  to  all  the 
reasoning  of  the  decided  cases  on  the  subject  of  the  law  of  agency,  we 
deem  it  best  to  hold  that  a  bill  of  lading  issued  by  a  station  or  ship- 
ping agent  of  a  railroad  company  or  other  common  carrier,  without 
receiving  the  goods  named  in  it  for  transportation,  imposes  no  lia- 
bility upon  the  carrier,  even  to  an  innocent  consignee  or  indorsee  for 
A^alue,  and  that  the  rule  is  the  same  whether  the  act  of  the  agent  was 
fraudulent  and  collusive,  or  merely  the  result  of  mistake.  Of  course 
this  is  predicated  upon  the  assumption  that  the  authority  of  the  agent 
is  limited  to  issuing  bills  of  lading  for  freight  received  before,  or  con- 
current with,  the  issuing  of  the  bills,  which  would  be  the  presumption 
in  the  absence  of  evidence  to  the  contrary.  No  doubt  a  carrier  might 
adopt  a  different  mode  of  doing  business  by  giving  his  agents  author- 
ity to  issue  bills  of  lading  for  goods  not  received,  so  as  to  render  him 
hable  in  such  cases  to  third, parties.^^ 

In  each  of  the  first  two  cases  the  judgment,  and  in  each  of  the  last 
two,  the  order,  appealed  from  is  reversed,  and  in  each  of  the  four 
cases  a  new  trial  is  directed. 

Ordered  accordingly.^ ^ 

On  reargument. 

MiTCHELiv,  J.  The  plaintiff  in  these  actions  asks  for  a  reargument 
on  the  ground  that  counsel  and  the  court  overlooked  section  17,  c. 
124,  Gen.  St.  1878,  which  provides  that  bills  of  lading  or  receipts  for 
any  goods,  wares,  merchandise,  etc.,  when  in  transit  by  cars  or  ves- 

11  Ace.  Smith  v.  Mo.  Pae.  Ry.  Ck).,  74  Mo.  App.  48  (1895).  And  see  Walters  v. 
Western,  etc..  Co.  (C.  C.)  56  Fed.  3G9  (1893).  But  see  Mo.  Pac.  Ry.  Co.  v.  Mc- 
Fadden.  1.54  U.  S.  155,  14  Sup.  Ct.  990,  38  L.  Ed.  £^4  (1894) ;  Swedish-Am.  Nat. 
Bk.  V.  C,  B.  &  Q.  Ry.  Co.,  96  Minn.  436,  105  N.  W.  69  (1905). 

]  2  Ace.  Lazard  v.  Merchants',  etc.,  Co.,  78  Md.  1,  26  Atl.  897  (1893)  ;  Rov  v. 
No.  Pac.  Ry.  Co.,  42  Wash.  572,  85  P.  .53,  6  L.  R.  A.  (N.  S.)  302  (1906) ;  Hender- 
son V.  Louisville,  etc.,  R.  Co.,  116  La.  1047,  41  South.  252,  114  Am.  St.  Rep. 
582  (1906). 


Ch.  5)  RIGHTS   OF   A    HOLDER   OF   A    BILL   OF   LADING.  197 

sels,  "shall  be  negotiable,  and  may  be  transferred  by  indorsement  and 
delivery  of  such  receipt  or  bill  of  lading;  and  any  person  to  whom 
said  receipt  or  bill  of  lading  may  be  transferred  shall  be  deemed  and 
taken  to  be  the  owner  of  the  goods,  wares,  or  merchandise  therein 
specified,"  etc.  This  statute  was  not  called  to  our  attention  upon  the 
argument,  but  an  examination  of  it  upon  this  motion  satisfies  us  that 
it  has  no  bearing  upon  the  questions  involved  in  these  cases.  It  was 
not  intended  to  totally  change  the  character  of  bills  of  lading,  and  put 
them  on  the  footing  of  bills  of  exchange,  and  charge  the  negotiation 
of  them  with  the  consequences  which  attend  or  follow  the  negotiation 
of  bills  or  notes.  On  the  contrary,  we  think  the  sole  object  of  the 
statute  was  to  prescribe  the  mode  of  transferring  or  assigning  bills 
of  lading,  and  to  provide  that  such  transfer  and  delivery  of  these 
symbols  of  property  should,  for  certain  purposes,  be  equivalent  to  an 
actual  transfer  and  delivery  of  the  property  itself.  See  Shaw  v.  Rail- 
road Co.,  101  U.  S.  557,  25  L.  Ed.  892. 

We  cannot  see  that  section  471  of  the  Penal  Code,  cited  in  the  peti- 
tion for  reargument,  has  any  bearing  whatever  on  the  cases.  The  pe- 
tition for  reargument  is  therefore  denied. 


TIBBITS  v.  ROCK  ISLAND  &  P.  RY.  CO. 

(Appellate  Court  of  Illinois,  Second  District,  1893.    49  111.  App.  .".07.) 

Cartwright,  C.  J.i^  Tyng,  Hall  &  Co.,  of  Peoria,  111.,  delivered  ta 
appellee  at  that  place  a  quantity  of  corn  for  shipment  to  Custer  City, 
Pa.,  and  received  from  appellee  a  bill  of  lading  for  the  same.  The 
grain  was  shipped  to  the  order  of  Tyng,  Hall  &  Co.  at  Custer  City, 
with  directions  to  notify  appellants.  The  bill  of  lading  contained  a 
column  for  the  weight  of  the  corn,  at  the  top  of  which  was  the  word 
"Weight"  and  under  that  were  the  words  "Subject  to  corrections." 
In  this  column  the  weight  of  the  corn  was  set  down  at  38,600  pounds. 
The  grain  was  loaded  into  a  car  from  the  Central  City  Elevator  at 
Peoria,  and  the  weight  was  furnished  by  the  weighmaster  of  the  Board 
of  Trade,  whose  weights  were  universally  accepted  by  parties  dealing 
in  grain  and  by  the  railroad  company.  Tyng,  Hall  &  Co.  filled  up  a 
blank  form  of  a  bill  of  lading  furnished  them  by  appellee,  inserting- 
the  weight  so  given,  and  the  agent  of  appellee  signed  it.  The  car 
was  sealed  and  forwarded  to  Custer  City.  Tyng,  Plall  &  Co.  drew  a 
draft  on  appellants  in  favor  of  Peoria  National  Bank  against  the  ship- 
ment, for  $246.18,  which  appellants  paid  and  received  the  bill  of  lad- 
ing. The  car  was  received  at  Custer  City  in  good  order,  with  the 
seals  unbroken,  showing  that  no  grain  had  been  lost  in  transit.  Ap- 
pellants paid  the  freight  on  the  amount  of  corn  stated  in  the  bill  of 

IS  Part  of  the  opinion  is  omitted. 


198  THE   CARRIEU'S   UNDERTAKING.  (Part  2 

lading,  but  the  corn  in  the  car,  when  opened,  only  weighed  24,264 
pounds,  a  shortage  of  14,336  pounds.  Appellants  brought  this  suit 
before  a  justice  of  the  peace  to  recover  for  such  shortage,  and  obtained 
judgment.  On  appeal  to  the  circuit  court,  the  case  was  tried  by  the 
court  without  a  jury.  The  foregoing  facts  appeared,  and  there  was 
a  finding  and  judgment  for  appellee. 

The  court  held,  in  propositions  of  law  submitted  for  the  purpose, 
that  as  to  the  quantity  of  any  article  of  shipment  received  a  bill  of 
lading  issued  by  a  carrier  is  to  be  treated  as  a  receipt,  and  subject  to 
explanation  in  that  respect ;  that  the  carrier  may  make  such  explana- 
tion against  an  assignee  for  value  whenever  the  bill  of  lading,  taken  as 
a  whole,  shows  that  the  carrier  does  not  vouch  for  the  correctness  of 
the  written  statement  of  the  quantity  received ;  and,  that  in  view  of 
the  language  used  in  the  printed  portion  of  the  bill  of  lading  in  ques- 
tion, which  stated  that  the  weight  was  subject  to  correction,  and  that 
the  contents  were  unknown,  it  was  competent  for  the  defendant  to 
show  the  quantity  of  corn  received  for  shipment,  and  it  was  not  liable 
for  more  than  was  actually  received. 

Bills  of  lading  are  constantly  used  by  shippers  to  obtain  advances 
upon  their  shipments,  and  it  is  to  be  expected  by  the  carrier  that  such 
use  will  be  made  of  them,  and  that  advances  will  be  made  upon  the 
faith  that  the  property  described  in  them  is  in  the  possession  of  the 
carrier,  and  will  be  delivered  to  the  holder  of  the  bills  of  lading. 
Those  trusting  in  them,  and  relying  upon  their  truth,  do  only  what  the 
carrier  has  every  reason  to  expect  wall  be  done.  Such  use  is  a  ma- 
terial aid  to  traffic  and  business,  and  is  to  be  recognized  as  an  impor- 
tant and  useful  factor  in  the  stock  and  grain  business  of  the  country. 
Appellants  paid  the  draft  in  this  instance,  relying  upon  the  represen- 
tations of  appellee  made  in  the  bill  of  lading,  and  they  paid  the  freight 
charges  exacted  from  them  on  the  38,600  pounds  named  in  the  bill, 
before  they  had  any  means  of  knowing  that  less  than  two-thirds  of 
that  amount  was  in  the  car.  Appellants  having  advanced  money  on 
the  faith  of  the  bill  of  lading,  it  would  be  a  fraud  upon  them  to  permit 
appellee  to  escape  liability  by  showing  that  its  statements  therein  con- 
tained were  false.  St.  L.  &  I.  M.  R.  R.  Co.  v.  Larned,  103  111.  293. 
So  far  as-  appellants  are  concerned,  appellee  must  be  bound  by  the 
terms  of  its   contract.^* 

The  bill  of  lading  used  was  a  general  blank  form  for  shipping  all 
sorts  of  freight,  and  contained  in  parenthesis  the  words  "Contents 
and  value  unknown,"  evidently  intended  to  apply  to  packages  therein 

1*  Ace.  Relyea  v.  New  Haven  Mill  Ck).,  42  Conn.  579,  75  Fed.  420  (U.  S.  D.  C, 
187.3).     See.  also,  note  to  Chandler  v.  Sprague.  38  Am.  Dee.  410,  414. 

But  see  Lake  Shore,  etc..  Ry.  Co.  v.  Nat.  Bk.,  178  111.  506,  518-524,  53  N.  E. 
32(>  (1809).  In  this  case  I'hillips,  J.,  said:  "A  bill  of  lading  is  both  a  receipt 
and  a  contract,  and  the  receipt  of  the  goods  for  carriage  is  the  basis  of  the 
contract  of  carriage.  If  no  goods  are  received  for  carriage,  there  can  be  nothing 
on  which  the  contract  of  carriage  can  be  based,  as  the  duties  and  obligations 
of  the  carrier  with  respect  to  the  goods  must  commence  with  their  delivery 


Ch.  5)  RIGHTS   OF   A   HOLDER   OF   A    BILL   OF    LADING.  199 

mentioned,  the  contents  of  which  were  concealed  from  view.  It 
could  not  apply  to  corn  in  bulk  loaded  into  a  car  from  an  elevator. 
Appellee  did  not  intend  to  say  by  its  bill  of  lading  that  it  had  received 
38,600  pounds  of  corn,  the  contents  of  which  were  unknown,  and  it 
would  not  be  so  understood. 

So  far  as  the  provision  that  weight  w'as  subject  to  correction  is 
concerned,  a  reasonable  interpretation  must  be  given  to  it,  such  as 
both  parties  w^ould  naturally  give  when  the  shipment  was  made.  Er- 
rors and  mistakes  are  liable  to  occur  in  weighing  grain  as  in  other 
things,  and  the  right  to  correct  such  errors  was  reserved  in  the  con- 
tract. Appellants  had  notice  of  that  provision,  and  anything  attributa- 
ble to  such  ordinary  errors  and  differences  in  weighing  as  might  be 
reasonably  expected  to  occur,  might  be  corrected,  but  the  right  must 
be  kept  within  the  reasonable  limits  of  such  errors.  Appellants,  when 
advancing  money  on  appellee's  statement  that  it  had  38,600  pounds 
of  corn,  to  which  they  would  get  title  by  acquiring  the  bill  of  lading, 
would  certainly  not  anticipate,  under  the  provision  for  correcting  er- 
rors in  weighing,  such  an  unreasonable  difference  in  weight,  not  at- 
tributable to  ordinary  errors  of  that  sort,  as  would  amount  to  256 
bushels  in  a  car  load  of  corn.  Such  a  difference  would  be  apparent  to 
sight,  and  it  w'ould  require  no  test  of  weighing  to  show  that  it  ex- 
isted. Appellee  would  have  no  right,  under  cover  of  correction  of  er- 
rors in  weighing,  to  account  for  such  a  difference  as  could  arise  only 
from  gross  negligence  of  its  agent.  Such  obvious  difference  could 
not  be  charged  to  errors  not  plainly  apparent,  and  merely  due  to  mis- 
takes in  w^eighing,  which  would  be  discovered  on  again  weighing  the 
corn.  If  appellee  could  reduce  the  amount  of  corn  more  than  one 
third,  there  would  be  no  limit  to  the  correcting  that  might  be  done.^'^ 

In  our  opinion,  the  holding  of  the  court  that  appellee  could  not  be 
made  liable  for  more  than  the  amount  of  corn  delivered,  was  erro- 
neous. *  *  *  The  judgment  will  be  reversed  and  the  cause  re- 
manded. 

to  him  in  a  manner  ttiat  puts  upon  him  the  exclusive  duty  of  seeing  to  their 
safety." 

In  Pollard  v.  Vinton,  10.5  U.  S.  7.  26  L.  Ed.  998  (18S1).  Miller.  J.,  said:  "The 
receii)t  of  the  goods  lies  at  the  foundation  of  the  contract  to  carry  and  deliver. 
If  no  goods  are  actually  received,  there  can  be  no  valid  contract  to  carry  or  to 
deliver." 

15  Compare  Miller  v.  Hannibal,  etc.,  R.  Co.,  90  N.  Y.  430,  43  Am.  Rep.  179 
(188'^)  barrels  containing  only  sawdust  shipped  as  "30  bbls.  of  eggs,  contents 
unknown";  The  Querini  Staniphalia  (C.  C.)  19  Fed.  123  (1883).  weight  un- 
known; Alabama  Gt.  So.  R.  Co.  v.  Comm.  Mfg.  Co.,  14ti  Ala.  388.  42  South. 
406  (1906),  "50  bales,  weighing  25.000  lbs.,  contents  unknown,"  where  the 
bales  numbered  50,  but  weighed  only  14,000  pounds. 


200  THE  CARRIEU'S  UNDERTAKING.  (Part  2 

MADDOCK  V.  AMERICAN  SUGAR  REFINING  CO. 
(District  Court,  D.  Massachusetts,  1808.    91  Fed.  IGG.) 

Lowell,  District  Judge.  The  libelant,  who  is  the  owner  of  the 
steamship  Salamanca,  seeks  to  recover  the  balance  of  freight  due  for 
the  carriage  of  sugar  on  the  steamship  from  Cuba  to  Boston.  The  re- 
spondent was  the  purchaser  of  the  sugar,  and  seeks  to  offset  against 
the  unpaid  balance  the  value  of  37  bags  of  sugar.  The  bills  of  lading, 
signed  by  the  master  of  the  Salamanca  and  assigned  to  the  respond- 
ent, acknowledge  the  receipt  on  board  the  Salamanca  of  11,640  bags, 
and  the  respondent  paid  value  for  this  number  of  bags  to  the  shipper; 
whereas  the  respondent  contends  that  only  11,603  bags  were  delivered 
to  it  in  Boston.  It  is  admitted,  however,  that  all  the  bags  received  on 
board,  whatever  the  number,  were  duly  delivered.  As  the  case  is 
presented,  I  have  to  determine  if  the  vessel  is  liable  for  the  shortage 
in  the  number  of  bags  of  sugar  set  out  in  the  bill  of  lading,  when  the 
bill  of  lading  and  the  sugar  represented  by  it  have  passed  to  a  bona 
fide  purchaser.  >No  fraud  is  charged  against  any  one — master,  owner, 
shipper,  or  vendee. 

The  great  weight  of  authority,  both  in  England  and  in  this  country, 
seems  to  hold  that  the  vessel  is  not  liable  in  the  case  above  stated. 
See  The  Freeman,  18  How.  182,  15  L.  Ed.  311 ;  Pollard  v.  Vinton, 
105  U.  S.  7,  26  L.  Ed.  998 ;  Railway  Co.  v.  McFadden,  154  U.  S.  155, 
14  Sup.  Ct.  990,  38  L.  Ed.  944;  Jessel  v.  Bath,  L.  R.  2  Exch.  267; 
Sears  v.  Wingate,  3  Allen  (Mass.)  103;  The  Loon,  7  Blatchf.  244, 
Fed.  Cas.  No.  8,499;  Robinson  v.  Railroad  Co.  (C.  C.)  9  Fed.  129; 
1  Pars.  Shipp.  &  Adm.  187;  McLachlan,  Shipp.  394;  Legg.  Bills  Lad. 
62.  Several  cases  in  New  York  to  the  contrary  effect  are  admittedly 
opposed  to  cases  which  the  Supreme  Court  has  cited  with  entire  ap- 
proval. It  is  contended,  indeed,  that  though  the  vessel  be  not  liable 
for  a  shortage  in  weight,  upon  the  ground  that  it  is  difficult,  if  not 
impossible,  to  weigh  a  cargo  exactly,  yet  that  the  vessel  is  liable  for  a 
shortage  in  the  number  of  cases  or  packages  or  other  separate  articles, 
inasmuch  as  these  may  be  definitely  counted.  Without  discussing  if 
the  exact  number  of  more  than  10,000  bags  of  sugar  can  be  ascer- 
tained more  accurately  than  the  weight  of  a  cargo  of  coal,  I  find  noth- 
ing in  the  authorities  to  support  the  distinction  urged. 

The  decisions  above  quoted,  and  many  others,  are  made  to  rest 
upon  the  principle  that  the  master's  apparent  authority  to  bind  the 
vessel  and  its  owner  does  not  extend  to  signing  bills  of  lading  for 
cargo  not  actually  received  on  board,  or,  at  any  rate,  delivered  into 
his  hands  for  shipment.  I  must  confess  that  this  reasoning  seems  to 
me  not  altogether  satisfactory.  I  suppose  that  the  statement  of  the 
bill  of  lading  signed  by  the  master  is  evidence  of  the  receipt  of  the 
goods  mentioned  in  it,  even  against  the  owner  and  the  vessel.  See 
McLean  v.  Fleming,  L.  R.  2  H.  L.  Sc.  128,  130 ;  Legg.  Bills  Lad.  225 ; 


Ch.  5)  RIGHTS   OF   A    HOLDER   OF   A    BILL    OF   LADING.  201 

Pars.  Shipp.  &  Adm.  197.  It  is  hard  to  see  how  this  can  be  so,  if  the 
master's  authority  extends  only  to  goods  actually  received.  If  his  au- 
thority be  so  limited,  his  receipt  of  the  goods  must  first  be  proved,  in 
order  to  show  that  he  is  authorized  to  certify  that  they  have  been  re- 
ceived. Perhaps  a  better  reason  for  the  established  doctrine  may  be 
that  a  bill  of  lading  is  not  generally  understood  to  be  a  representation 
to  whomsoever  it  may  concern  that  certain  articles  are  in  the  hands 
of  the  carrier,  but  merely  a  receipt,  which  is,  indeed,  prima  facie  evi- 
dence of  the  facts  set  out  in  it,  but  is  also  subject  to  contradiction  as 
against  even  a  bona  fide  holder  thereof.  Whatever  be  the  grounds  of 
the  doctrine,  however,  I  think  it  is  established  too  firmly  for  this  court 
to  question  it. 

Decree  in  accordance  with  this  opinion.'® 

i«  Affirmed  93  Fed.  980,  3G  C.  C.  A.  42  (1899)  Ace.  Brown  v.  Powell  Coal  Co., 
L.  R.  10  C.  P.  562  (1875).  "  *  *  *  It  is  a  mistake  to  suppose  that  the  in- 
terests of  commerce  require  that  the  common  carriers  of  the  country  shall  be- 
ct)me  the  insurers  or  guarantors  of  merchants  who  choose  to  make,  in  their 
dealings  with  others,  a  convenience  of  their  bills  of  lading."  Hammond,  J.,  in 
llobinson  v.  Memphis,  etc.,  R.  Co.,  9  Fed.  129,  140  (1881). 

"To  hold  the  ship  to  such  a  liability,  would  be  not  only  in  plain  contradic- 
tion of  the  authorities  above  cited,  hut  a  plain  enlargement  and  perversion  of 
the  ship's  business  from  that  of  simple  transportation,  to  that  of  guarantor 
and  insurer  against  fraud  or  mistake  in  the  execution  of  contracts  between 
vendor  and  vendee  for  their  convenience.  That  is  not  the  proper  business  of 
the  ship,  or  of  her  officers.  The  vendor  and  vendee  could  not  make  the  ship  or 
her  owners  responsible  for  the  exact  performance  of  the  contract  between 
themselves  by  means  of  the  ship's  tally  taken  for  the  purpose  merely  of  giving 
the  receipt  in  the  bills  of  lading.  The  shipper  plainly  could  base  no  conclusive 
claim  upon  such  a  tally ;  nor  can  the  consignee,  because  neither  the  tally  nor 
the  bills  of  lading  were  given  for  the  purpose  of  authorizing  payment  by  the 
consignee  before  delivery  or  without  any  verification  of  the  ship's  count ;  nor 
was  the  consignee  authorized  to  make  use  of  the  tally  for  such  a  purpose,  ex- 
cept at  his  own  risk,  as  regards  fraud  or  mistake.  There  has  long  been,  no 
doubt,  a  recognized  tendency  in  favor  of  commercial  dealings  in  goods  in 
transit,  to  which  dealings  the  ship  is  no  party,  to  make  the  ship  responsible, 
by  the  application  of  the  principle  of  equitable  estoppel,  for  the  accuracy  of 
the  receipt  stated  in  the  bill  of  lading.  This  has  never  been  by  any  acquies- 
cence or  agreement  on  the  part  of  the  carrier.  In  self-defense  and  to  protect 
themselves  against  liabilities  which  they  never  intended  to  assume  and  for 
which  they  have  received  no  corresponding  remuneration,  masters  and  ship 
owners  have  long  been  in  the  habit  of  inserting  various  restrictions  and  ex- 
ceptions in  order  to  guard  against  such  resiwnsibility."  Brown,  J.,  in  the  Asp- 
hodel (D.  C.)  .53  Fed.  835  (1893). 

■^Tiere  a  bill  of  lading  recites  that  freight  has  been  paid,  the  carrier  is  es- 
topped to  contradict  the  recital  as  against  one  who  has  bought  in  reliance  upon 
it.    Howard  v.  Tucker,  1  B.  &  Ad.  712  (1831). 


202  .       THE  carrier's  undertaking.  (Part  2 

CHAPTER  VI 
TICKETS 


AUERBACH  v.  NEW  YORK  CEXT.  &  H.  R.  R.  CO. 

(Court  of  Appeals  of  Ne\v  York,  1SS2.     80  N.  Y.  281,  42  Aui.  Rep.  290.) 

Earl^  J.  This  action  was  brought  by  the  plaintiff  to  recover  dam- 
ages for  being  ejected  from  one  of  the  defendant's  cars  while  he  was 
riding  therein  as  a  passenger  He  was  nonsuited  at  the  trial,  and  the 
judgment  entered  upon  the  nonsuit  was  affirmed  at  the  General  Term. 
The  material  facts  of  the  case  are  as  follows : 

The  plaintiff,  being  in  St.  Louis  on  the  21st  day  of  September, 
1877,  purchased  of  the  Ohio  and  Mississippi  Railway  Company  a 
ticket  for  a  passage  from  St.  Louis  over  the  several  railroads  men- 
tioned in  coupons  annexed  to  the  ticket  to  the  city  of  New  York.  It 
was  specified  on  the  ticket  that  it  was  "good  for  one  continuous  pas- 
sage to  point  named  on  coupon  attached" ;  that  in  selling  the  ticket  for 
passage  over  other  roads  the  company  making  the  sale  acted  only  as 
agent  for  such  other  roads,  and  assumed  no  responsibility  beyond  its 
own  line ;  that  the  holder  of  the  ticket  agreed  with  the  respective  com- 
panies over  whose  roads  he  was  to  be  carried  to  use  the  same  on  or 
before  the  26th  day  of  September  then  instant,  and  that,  if  he  failed 
to  comply  with  such  agreement,  either  of  the  companies  might  refuse 
to  accept  the  ticket,  or  any  coupons  thereof,  and  demand  the  full  regu- 
lar fare  which  he  agreed  to  pay.  He  left  St.  Louis  on  the  day  he 
bought  the  ticket,  and  rode  to  Cincinnati,  and  there  stopped  a  day. 
He  then  rode  to  Cleveland  and  stayed  there  a  few  hours,  and  then  rode 
on  to  Buffalo,  reaching  there  on  the  24th,  and  stopped  there  a  day. 

Before  reaching  Buffalo  he  had  used  all  the  coupons  except  the  one 
entitling  him  to  a  passage  over  the  defendant's  road  from  Buffalo  to 
New  York.  The  material  part  of  the  language  upon  that  coupon  is  as 
follows :  "Issued  by  Ohio  and  Mississippi  Railway  on  account  of 
New  York  Central  and  Hudson  River  Railroad  one  first-class  passage, 
Buffalo  to  New  York." 

Being  desirous  of  stopping  at  Rochester,  the  plaintiff  purchased  a 
ticket  over  the  defendant's  road  from  Buffalo  to  Rochester,  and  upon 
that  ticket  rode  to  Rochester  on  the  25th,  reaching  there  in  the  after- 
noon. He  remained  there  about  a  day,  and  in  the  afternoon  of  the 
26th  of  September  he  entered  one  of  the  cars  upon  the  defendant's 
road  to  complete  his  passage  to  the  city  of  New  York.  He  presented 
his  ticket,  with  the  one  coupon  attached,  to  the  conductor,  and  it  was 
accepted  by  him,  and  was  recognized  as  a  proper  ticket  and  punched 


Ch.  6)  TICKETS.  203 

several  times,  until  the  plaintiff  reached  Hudson  about  3  or  4  o'clock 
a.  m.,  September  2Tth,  when  the  conductor  in  charge  of  the  train  de- 
clined to  recognize  the  ticket  on  the  ground  that  the  time  had  run  out, 
and  demanded  $3  fare  to  the  city  of  New  York,  which  the  plaintiff 
declined  to  pay.  The  conductor  with  some  force  then  ejected  him 
from  the  car. 

The  trial  judge  nonsuited  the  plaintiff  on  the  ground  that  the  ticket 
entitled  him  to  a  continuous  passage  from  Buffalo  to  Xew  York,  and 
not  from  any  intermediate  point  to  New  York.  The  General  Term 
affirmed  the  nonsuit  upon  the  ground  that,  although  the  plaintiff  com- 
menced his  passage  upon  the  26th  of  September,  he  could  not  continue 
it  after  that  date  on  that  ticket. 

We  are  of  opinion  that  the  plaintiff  was  improperly  nonsuited.  The 
contract  at  St.  Louis,  evidenced  by  the  ticket  and  coupons  there  sold, 
was  not  a  contract  by  any  one  company  or  by  all  the  companies  named 
in  the  coupons  jointly  for  a  continuous  passage  from  St.  Louis  to 
New  York.  A  separate  contract  was  made  for  a  continuous  passage 
over  each  of  the  roads  mentioned  in  the  several  coupons.  Each  com- 
pany through  the  agent  selling  the  ticket  made  a  contract  for  a  pas- 
sage over  its  road,  and  each  company  assumed  responsibility  for  the 
passenger  only  over  its  road.  No  company  was  liable  for  any  acci- 
dent or  default  upon  any  road  but  its  own.  This  was  so  by  the  very 
terms  of  the  agreement  printed  upon  the  ticket.  Hence  the  defend- 
ant is  not  in  a  position  to  claim  that  the  plaintiff'  was  bound  to  a  con- 
tinuous passage  from  St.  Louis  to  New  York,  and  it  cannot  complain 
of  the  stoppages  at  Cincinnati  and  Cleveland.  Hutchinson  on  Car- 
riers, §  579;   Brooke  v.  Grand  Trunk  Railway  Co.,  15  Mich.  332. 

But  the  plaintiff  was  bound  to  a  continuous  passage  over  the  de- 
fendant's road;  that  is,  the  plaintiff  could  not  enter  one  train  of  the 
defendant's  cars  and  then  leave  it,  and  subsequently  take  another  train, 
and  complete  his  journey.  He  was  not,  however,  bound  to  commence 
his  passage  at  Buffalo.  He  could  commence  it  at  Rochester  or  Al- 
bany, or  any  other  point  between  Buffalo  and  New  York,  and  then 
make  it  continuous.  The  language  of  the  contract  and  the  purpose 
which  may  be  supposed  to  have  influenced  the  making  of  it  do  not 
require  a  construction  which  would  make  it  imperative  upon  a  pas- 
senger to  enter  a  train  at  Buffalo.  No  possible  harm  or  inconvenience 
could  come  to  the  defendant  if  the  passenger  should  forego  his  right 
to  ride  from  Buffalo  and  ride  only  from  Rochester  or  Albany.  The 
purpose  was  only  to  secure  a  continuous  passage  after  the  passenger 
had  once  entered  upon  a  train.  On  the  26th  of  September  the  plain- 
tiff having  the  right  to  enter  a  train  at  Buffalo,  it  cannot  be  perceived 
why  he  could  not.  with  the  same  ticket,  rightfully  enter  a  train  upon 
the  same  line  at  any  point  nearer  to  the  place  of  destination.^ 

1  Compare  Gt.  No.  Ry.  Co.  v.  Winder,  [1892]  2  Q.  B.  .595,  where  a  passenger 
using  a  ticket  for  a  distant  station  to  a  nearer  point  to  which  the  fare  was 
higher  was  held  liable  for  the  difference  in  fares. 


204  THE  carrier's  undertaking.  (Part  2 

When  the  plaintiff  entered  the  train  at  Rochester  on  the  afternoon 
of  the  26th  of  September,  and  presented  his  ticket,  and  it  was  accepted 
and  punched,  it  was  then  used  within  the  meaning  of  the  contract. 
It  could  then  have  been  taken  up.  So  far  as  the  plaintiff  was  con- 
cerned, it  had  then  performed  its  office.  It  was  thereafter  left  with 
him  not  for  his  convenience,  but  under  regulations  of  the  defendant 
for  its  convenience  that  it  might  know  that  his  passage  had  been  paid 
for.  The  contract  did  not  specify  that  the  passage  should  be  com- 
pleted on  or  before  the  2fith,  but  that  the  ticket  should  be  used  on  or 
before  that  day,  and  that  it  was  so  used  it  seems  to  us  is  too  clear  for 
dispute. - 

The  language  printed  upon  the  ticket  must  be  regarded  as  the  lan- 
guage of  the  defendant,  and  if  it  is  of  doubtful  import  the  doubt 
should  not  be  solved  to  the  detriment  of  the  passenger.  If  it  had  been 
intended  by  the  defendant  that  the  passage  should  be  continuous  from 
St.  Louis  to  New  York,  or  that  it  should  actually  commence  at  Buffalo 
and  be  continuous  to  the  city  of  New  York,  or  that  the  passage  should 
be  completed  on  or  before  the  26th  of  September,  such  intention 
should  have  been  plainly  expressed  and  not  left  in  such  doubt  as  might 
and  naturally  would  mislead  the  passenger. 

We  have  carefully  examined  the  authorities  to  which  the  learned 
counsel  for  the  defendant  has  called  our  attention,  and  it  is  sufficient 
to  say  that  none  of  them  are  in  conflict  with  the  views  above  expressed. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs  to 
abide  the  event.^ 


MORNINGSTAR  v.  LOUISVILLE  &  N.  R.  CO. 

(Supreme  Court  of  Alabama,  1902.    135  Ala.  251,  33  South.  156.) 

Sharpe,  J.*  Apart  from  the  office  it  may  perform  in  evidencing  the 
contract  of  carriage,  the  chief  use  of  a  passenger  ticket  is  to  identify 
the  holder  as  a  person  who  has  paid  his  fare,  or  has  otherwise  com- 
plied with  conditions  entitling  him  to  carriage,  and  this  use  of  it  is  or- 

2  "Suppose  the  Post  Office  Department  were  to  determine  to  retire  all 
postage  stamps  of  a  certain  print,  and  should  notify  the  public  that  such 
stamps  could  not  be  used  after  a  certain  day.  Would  any  person  doubt  that 
a  letter  mailed  with  such  a  stamp  at  any  time  before  the  closing  of  the  mails 
on  the  day  named  would  go  to  its  destination,  although  the  transit  might 
take  a  week  or  more?"  Thompson,  J.,  in  Evans  v.  St.  Louis,  etc.,  Ry.  Co., 
11  Mo.  App.  463  (1882). 

3  A  ticket  unlimited  as  to  time  is  good  until  the  time  fixed  by  the  statute 
of  limitations  for  bringing  actions  of  simple  contract  has  elapsed  since  its  is- 
sue. See  Erie  R.  Co.  v.  Littell,  128  Fed.  546,  63  C.  C.  A.  44  (19(>4).  But  is 
not  good  thereafter.  Cassiano  v.  Galveston,  etc.,  Ry.  Co.  (Tex.  Civ.  App.)  82 
S.  W.  806  (1904).  In  Keeley  v.  B.  &  M.  R.  Co.,  67  Me.  163.  24  Am.  Rep.  19 
(1878),  it  was  held  that  a  ticket  bought  in  Portland,  bearing  the  words  "Port- 
land to  Boston,"  did  not  entitle  the  holder  to  passage  from  Boston  to  Port- 
land. 

4  The  statement  of  facts  has  been  omitted. 


Ch.  6)  TICKETS.  205 

-dinarily  made  when  the  holder  offers  himself  to  be  carried;  hence, 
where  nothing  is  expressed  to  the  contrary,  a  stipulation  purporting 
to  limit  the  use  of  a  ticket  to  a  specified  time  is  construed  as  fixing  that 
time  as  the  latest  for  commencing,  and  not  for  completing,  the  jour- 
ney. Auerbach  v.  Railroad  Co.,  89  N.  Y.  281,  42  Am.  Rep.  290; 
Lundy  V.  Railroad  Co.,  66  Cal.  191,  4  Pac.  1193,  56  x\m.  Rep.  100. 

Accordingly  the  clause  in  plaintiff's  ticket  declaring  it  "void  after 
i\Iay  20,  1900,"  implied  a  stipulation  merely  for  plaintiff's  commence- 
ment of  the  trip  from  Pensacola  before  the  expiration  of  that  day. 
He  had  a  right  to  assume,  and  to  rely  upon  the  assumption,  that  de- 
fendant would  conform  to  its  schedule  for  running  trains,  and  was 
prevented  from  entering  upon  his  journey  on  May  20th  only  by  delay 
until  after  midnight  of  the  train  scheduled  to  leave  Pensacola  at  the 
hour  of  11 :20  p.  m.  of  that  day.  Defendant  was  not  entitled  to  treat 
its  own  default  as  defeating  its  obligation  to  the  plaintiff',  nor  was 
that  obligation  discharged  by  placing  him  at  Flomaton. 

Defendant  operated  the  road  from  Flomaton  to  jNIobile,  as  well  as 
that  from  Pensacola  to  Flomaton,  and,  having  accepted  his  ticket  for 
passage  to  the  latter  place,  and  having  delayed  his  arrival  there  until 
the  usually  connecting  train  had  gone,  it  was  under  the  duty  to  not 
abandon  him,  and  to  aff'ord  him  opportunity  to  proceed  by  another 
train  to  Alobile.  If,  as  the  evidence  tends  to  show,  the  plaintiff  was 
duly  diligent  about  attempting  to  pursue  his  journey  from  Flomaton, 
the  conductor  of  the  Mobile  train  in  ejecting  him  acted  not  under, 
but  in  violation  of,  the  contract  of  carriage.  The  ticket  did  not  pur- 
port to  show  on  its  face,  or  in  connection  with  the  fact  that  plaintiff 
was  journeying  late,  that  any  forfeiture  had  occurred  under  the  time 
limitation,  for  the  circumstances  controlling  his  right  to  so  travel  were 
not  disclosed  by  the  ticket.  The  conductor,  in  denying  that  right, 
simply  risked  the  company's  responsibility  upon  the  existence  vel  non 
of  facts  avoiding  such  forfeiture.  The  evidence  offered  by  plaintiff' 
tended  to  the  establishment  of  such  facts,  and  should  not.  as  a  whole, 
have  been  excluded  from  the  jury. 

Reversed  and  remanded.^ 

5  A  passenger  who  had  begun  his  journey  in  due  season  stopped  over  by- 
consent  of  the  railroad,  and  attempted  to  resume  his  trip  after  the  time  to 
which  his  ticlvct  was  limited  had  expired.  The  ticket  was  held  to  be  invalid. 
Landers  v.  Mo.,  etc..  Co.  (Tex.  Civ.  App.)  50  S.  W.  528  (1899). 

A  passenger  who  began  a  journey  at  9  p.  m..  upon  a  ticket  to  expire  at  mid- 
night, was  obliged  in  Its  usual  course  to  change  after  midnight  to  a  train  on 
another  division  of  the  same  road.  It  was  held  that  his  ticket  entitled  him 
to  passage  on  that  train.  Cleveland,  etc.,  Ry.  Co.  v.  Kinsley,  27  Ind.  App.  135, 
60  N.  E.  169,  87  Am.  St.  Rep.  245  (1901). 

A  passenger  bought  a  ticket  over  connecting  lines  and  Immediately  began 
his  jonrney.  Because  of  a  wreck,  he  could  not  reach  the  last  carrier's  line 
until  after' the  time  to  which  his  ticket  was  limited  had  expired.  It  was  held 
that,  if  the  last  carrier  had  contracted  only  for  carriage  over  his  own  line, 
the  ticket  had  become  invalid.  It  was  also  held  that  if  he  had  contracted 
for  through  transportation  the  ticket  was  still  good.     Gulf,  etc.,  R.  Co.  v. 


206  THE  carrier's  undertaking.  (Part  2 


GARRISON  V.  UNITED  RYS.  &  ELECTRIC  CO. 

(Supreme  Court  of  Marylaud,  1903.     97  Md.  347,  55  Atl.  371,  99  Am.  St.  Rep. 

4.32.) 

McSherry,  C.  J.^  *  *  *  It  appears  that  the  appellant,  with  two 
friends,  boarded  a  car  of  the  appellee  at  the  corner  of  Lombard  and 
Carey  streets,  in  Baltimore,  about  3  :40  or  3  :45  on  the  afternoon  of 
]\Iarch  6,  190L  They  paid  their  fares,  and  asked  for  transfers  to  the 
Wilkins  Avenue  line  going  south.  The  conductor  gave  the  transfers 
as  requested,  and  punched  the  date,  the  hour,  3  :oO,  and  the  transfer 
point,  Gilmor  and  Lombard  streets.  The  transfers  were  limited  as 
to  the  time  within  which  they  could  be  used,  and  the  time  thus  limited 
was  indicated  by  the  punch  marks  which  the  conductor  made.  It  is 
alleged  by  the  appellant — and  for  the  purposes  of  this  discussion  it 
will  be  assumed  to  be  true — 'that  no  car  passed  south  on  Wilkins  ave- 
nue until  after  the  time  limited  for  the  use  of  the  transfer  had  ex- 
pired.    *     *     * 

In  the  nature  of  the  case,  regard  being  had  to  the  character  and  the 
magnitude  of  the  business  of  conveying  on  street  cars  hundreds  of 
thousands  of  passengers,  it  would  seem  to  be  a  very  proper  precaution 
for  the  company  to  protect  itself  against  imposition  by  affixing  to  the 
transfers  which  it  is  required  to  issue  a  limit  beyond  which  they  should 
not  be  available  for  use.  When  thus  limited,  they  are  void,  and  do 
not  entitle  the  holder  to  ride  on  the  cars  after  the  expiration  of  the 
time  specified  by  the  punch  marks.  The  statute  makes  the  transfers 
good  for  a  continuous  ride.  That  language  would  seem  to  exclude 
the  notion  that  there  can  be  no  time  limit  affixed.  A  continuous  ride 
does  not  mean  a  ride  interrupted  by  a  considerable  interval  of  time. 
If  the  time  within  which  the  transfer  may  be  used  expires  by  reason 
of  the  failure  of  the  company  to  run  its  cars  frequently  enough,  that 
fact  does  not  make  the  transfer  good,  or  authorize  a'  conductor  to 
honor  it.  In  such  circumstances  it  is  the  plain  duty  of  the  passenger 
to  pay  his  fare. 

But  he  is  not  without  remedy.  If,  by  the  company's  fault,  the 
transfer  expires  before  the  holder  has  had  an  opportunity  to  use  it, 
and  in  consequence  he  is  required  to  pay  and  does  pay  his  fare,  he 

Loonev,  85  Tex.  158,  19  S.  W.  1039,  16  It.  R.  A.  471,  34  Am.  St.  Rep.  787 
(1892).    But  see,  as  to  the  latter  point,  Pa.  Co.  v.  Hine,  41  Ohio  St.  276  (1SS4). 

Where  the  last  day  for  using  a  ticket  fell  on  Sunday,  and  no  trains  ran 
that  day,  the  ticket  was  held  good  on  the  first  train  on  Monday.  Little  Rock, 
etc.,  Co.  V.  Dean,  43  Ark.  529,  51  Am.  Rep.  584  (1884). 

Where  a  strike  prevented  the  running  of  trains  until  after  a  ticket  had 
expired,  it  was  held  that  the  holder  of  the  ticket,  who  had  made  his  intended 
journey  by  another  railroad,  could  not  use  the  ticket  at  his  next  opportunity 
after  the  strike  was  over.  Elliott  v.  So.  Pac.  Co.,  145  Cal.  441,  79  Pac.  420, 
68  L.  R.  A.  393  (1904). 

6  Parts  of  the  opinion  are  omitted. 


Ch.  6)  TICKETS.  207 

would  have  his  action  against  the  company.  But  if  it  were  held  that, 
in  spite  of  the  expiration  of  the  transfer,  the  conductor  was  still 
obliged  to  accept  it,  the  company  would  be  exposed  to  flagrant  im- 
position without  any  means  of  protecting  itself.  The  transfer,  like 
a  railroad  company's  ticket,  is  the  evidence  of  the  passenger's  right  to 
ride.  U.  Rvs.  &  E.  Co.  v.  Hardestv,  94  ^Id.  661,  51  Atl.  406,  57  L. 
R.  A.  275 ;  W.  AI.  R.  R.  Co.  v.  Stocksdale,  83  Aid.  245,  34  Atl.  880 ; 
B.  &  O.  R.  R.  Co.  v.  Blocher,  27  Md.  277.  If  the  transfer,  like  the 
ticket,  is  void  on  its  face,  it  is  not  a  token  of  the  holder's  right  to  be 
transported  on  the  carrier's  conveyance.  In  P.  W.  &  B.  R.  R.  Co.  v. 
Rice,  64  Md.  63,  21  Atl.  97,  the  hability  of  the  company  was  placed 
upon  the  ground  that  the  ticket  was  apparently  good  on  its  face.  This 
is  distinctly  pointed  out  in  W.  M.  R.  R.  Co.  v.  Stocksdale,  supra. 

In  the  case  at  bar  the  transfer  was  void  on  its  face  when  the  appel- 
lant attempted  to  use  it.  It  therefore  did  not  entitle  him  to  ride  on 
the  Wilkins  Avenue  car,  and  the  conductor  was  justified  in  demand- 
ing the  appellant's  fare,  and,  upon  the  refusal  of  the  latter  to  pay,  the 
conductor  was  warranted  in  ejecting  him.  There  was,  consequently, 
no  error  committed  in  rejecting  the  appellant's  first  prayer  and  in 
granting  the  appellee's  second  prayer.     *     *     * 

Judgment  for  defendant  affirmed. 


AIKEX  V.  SOUTHERN  RY.  CO. 

(Supreme  Court  of  Georgia,  1903.     118  Ga.  US,  44  S.  E.  828,  G2  L.  R.  A.  CGG, 

98  Am.  St.  Rep.  107.) 

Aiken,  as  administrator  of  King,  sued  the  defendant  railway  com- 
pany, alleging  that  by  selling  King  tickets  for  himself  and  wife  it 
contracted  with  King  for  the  safe  carriage  of  his  wife  as  a  passenger, 
but  by  negligently  jerking  the  train  as  she  was  about  to  alight  caused 
her  serious  injuries,  and  thereby  subjected  her  husband  to  expense 
and  to  the  loss  of  his  wife's  services.  A  demurrer  to  the  petition  was 
sustained,  and  plaintiff  excepted. 

Cobb,  T.t  *  *  *  When  the  petition  in  the  present  case  is  con- 
strued as  a  whole,  we  think  it  sufficiently  appears  that  the  purpose  of 
the  pleader  was  to  bring  an  action  on  the  alleged  contract  of  carriage. 
So  construing  it,  it  is  to  be  determined  whether  it  sets  forth  a  cause 
of  action.  Does  it  sufficiently  appear  that  the  railway  company  en- 
tered into  a  contract  with  King  for  the  safe  transportation  of  his  wife  ? 
It  is  alleged  in  terms  that  King  contracted  with  the  railway  company, 
but  the  manner  in  which  the  contract  was  made  is  also  set  forth,  and 
from  this  it  is  apparent  that  King  made  no  other  contract  than  one 

7  The  statement  has  been  written  from  facts  stated  in  the  opinion.  Parts  of 
the  opinion  have  been  omitted. 


■208  THE  carrier's  undertaking.  (Part  2 

which  would  arise  from  the  mere  purchase  of  an  ordinary  ticket  for 
his  wife. 

The  question,  therefore,  arises  whether,  when  one  purchases  such 
a  ticket  from  a  railway  company  for  the  use  of  another,  and  there  are 
no  other  transactions  or  negotiations  between  the  purchaser  and  the 
company,  the  contract  of  carriage  is  made  with  the  purchaser  of  the 
ticket,  or  with  the  one  who  uses  the  ticket  as  evidence  of  a  right  to 
passage.  While  there  has  been  some  difference  of  opinion  as  to  wheth- 
er a  railroad  ticket  constitutes  a  contract,  by  the  great  weight  of  au- 
thority "the  ordinary  ticket  is  not  a  contract,  but  is  evidence  of  the 
right  to  transportation  furnished  to  the  passenger  in  consequence  of  a 
contract  to  carry,  and  is  intended  to  enable  the  passenger  to  secure 
transportation,  under  the  rules  and  regulations  of  the  carrier  in  per- 
formance of  such  contract."  6  Cyc.  570.  See,  also,  25  Am.  &  Eng. 
Enc.  L.  (1st  Ed.)  1074;  1  Fetter,  Carriers,  §  275;  Quimby  v.  Vander- 
t)ilt,  17  N.  Y.  306,  72  Am.  Dec.  469 ;  McLain's  Cas.  Car.  57,  222,  663, 
682. 

In  Boyd  v.  Spencer,  103  Ga.  828.  30  S.  E.  841,  68  Am.  St.  Rep.  146, 
this  language  was  used :  "A  ticket  issued  to  a  passenger  by  a  common 
carrier  does  not  constitute  the  contract  between  the  parties  unless 
made  so  by  express  agreement.  It  is  in  the  nature  of  a  receipt  for  the 
passage  money,  and  is  generally  only  a  token,  the  purpose  of  which  is 
to  enable  the  carrier  to  recognize  the  bearer  as  the  person  entitled  to 
be  carried.  Any  other  system  by  which  the  business  of  the  carrier 
would  be  equally  facilitated  would  answer  the  same  purpose  as  the 
ticket  system."  See,  also.  Southern  Railway  Company  v.  Watson, 
110  Ga.  691,  36  S.  E.  209. 

There  is  nothing  alleged  in  the  petition  as  to  the  character  of  the 
ticket  purchased  by  King  for  his  wife,  and  it  is  to  be  presumed  that 
it  was  the  ordinary  ticket  indicating  the  points  between  which  the  pas- 
senger was  to  be  transported.  When  one  purchases  an  ordinary  ticket 
from  the  ticket  agent  of  a  railway  company,  and  there  is  no  other 
communication  between  the  purchaser  and  the  company  than  the  ap- 
plication to  the  ticket  agent  for  the  ticket,  the  delivery  of  the  ticket, 
and  the  payment  of  the  price,  the  railway  company,  by  the  delivery  of 
the  ticket  under  such  circumstances,  undertakes  to  safely  transport 
and  carry  any  person  who  may  enter  its  cars  as  a  passenger  having 
possession  of  such  ticket.  In  the  absence  of  some  express  agreement 
to  the  contrary,  this  is  the  undertaking  of  the  company.  If  the  pur- 
chaser himself  becomes  the  passenger,  he  has  a  right  to  rely  upon  the 
implied  contract  of  safe  transportation.  On  the  other  hand,  if  he  does 
not  become  the  passenger,  but  delivers  the  ticket  to  some  one  else, 
either  for  a  valuable  consideration  or  gratuitously,  the  implied  obli- 
gation on  the  part  of  the  railway  company  to  safely  transport  arises 
in  favor  of  him  who  presents  himself  as  a  passenger  and  tenders  the 
ticket  as  evidence  of  his  right  to  passage.  In  other  words,  in  such  a 
case  the  contract  entered  into  by  the  railway  company  at  the  time  the 


Ch.  6)  TICKETS.  209 

ticket  is  delivered  is  simply  a  contract  safely  to  transport  whoever 
may  present  himself  as  a  passenger  holding-  the  ticket. 

We  do  not  mean  to  hold  that  a  husband  might  not  make  an  express 
contract  with  a  railway  company  for  the  safe  transportation  of  his 
wife;  but  it  would  seem  that,  where  such  a  contract  was  claimed,  it 
would  be  incumbent  upon  the  person  setting  it  up  to  show  that  the 
agent  with  whom  it  was  made  had  authority  to  do  so.  What  we  do 
mean  to  hold  is  that  the  mere  purchase  of  an  ordinary  ticket  by  a  hus- 
band for  his  wife,  even  though  he  pays  for  it,  does  not  constitute  a 
contract  between  the  purchaser  and  the  company  for  the  safe  trans- 
portation of  the  wife,  but  the  implied  contract  for  safe  passage  which 
the  law  raises  from  the  purchase  of  the  ticket  is  in  favor  of  the  wife, 
and  in  her  behalf  alone  can  an  action  be  maintained  for  its  breach.  Of 
course,  we  do  not  mean  to  hold  that  where  a  railroad  company  has. 
undertaken  to  safely  carry  a  wife,  or  child,  or  servant,  the  husband,  or 
father,  or  master  may  not,  in  an  action  of  tort,  recover  any  damages 
he  sustains  on  account  of  injuries  received  by  the  wife,  child,  or  serv- 
ant in  consequence  of  the  negligence  of  the  carrier.     *     *     * 

Judgment  affirmed. 


SLEEPER  V.  PENNSYLVANIA  R.  CO. 

(Supreme  Court  of  Pennsylvania,  18S2.    100  Pa.  259,  45  Am.  Dec.  380.) 

Case,  by  George  W.  Sleeper  against  the  Pennsylvania  Railroad 
Company,  to  recover  damages  for  an  illegal  ejecting  of  plaintiff  from 
defendant's  train. 

On  the  trial  the  plaintiff  testified  that  on  the  morning  of  Alay  8, 
1878,  he  took  passage  on  the  defendant's  train  from  New  York  to 
Philadelphia  and  tendered  to  the  conductor  in  payment  of  his  fare  a 
ticket  which  he  had  bought  several  months  before  at  a  place  on  Broad- 
way, New  York,  not  a  regular  agency  of  the  company,  but  a  place 
where  they  advertised  tickets  at  reduced  rates.  He  further  testified 
that  he  paid  for  the  ticket  one  dollar  less  than  the  current  rates.  The 
conductor  refused  to  receive  the  ticket,  and  upon  plaintift"s  refusing  to 
pay  the  fare  put  him  off  the  train  at  Elizabeth.  The  present  suit  was 
then  brought.  The  court  on  motion  of  defendant  awarded  a  nonsuit, 
which  the  court  in  banc  subsequently  declined  to  take  oft'.  Plaintiff 
thereupon  took  this  writ,  assigning  for  error  the  granting  of  the  non- 
suit and  the  refusal  to  take  off  the  same. 

Mr.  Justice  Trunkey.  The  parties  agree  that  this  case  presents  a 
single  question,  whether  a  person  purchasing  a  ticket  over  the  Penn- 
sylvania Railroad  from  New  York  to  Philadelphia,  from  a  ticket  deal- 
er who  is  not  an  authorized  agent  of  the  company,  can  maintain  an 
action  in  the  courts  of  this  state  for  the  refusal  of  the  company  to 
carry  him  between  these  points  in  return  for  said  ticket. 
Gbeen  Care. — 14 


210  THE   carrier's   UNDERTAKING.  (Part  2 

By  the  act  of  ]\Iay  6,  1863  (P.  L.  582),  it  is  made  the  duty  of  every 
railroad  company  to  provide  each  agent  authorized  to  sell  tickets  en- 
titling the  holder  to  travel  upon  its  road,  with  a  certificate  attested  by 
the  corporate  seal  and  the  signature  of  the  officer  whose  name  is 
signed  to  the  tickets.  And  any  person  not  possessed  of  such  author- 
ity, who  shall  sell,  barter,  or  transfer,  for  any  consideration,  the  whole 
or  any  part  of  a  ticket,  or  other  evidence  of  the  holder's  title  to  travel 
on  any  railroad,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 
be  liable  to  be  punished  by  fine  and  imprisonment.  The  purchasing 
and  using  a  ticket  from  a  person  who  has  no  authority  to  sell,  is  not 
made  an  offence. 

That  the  plaintifif's  ticket,  on  its  face,  entitled  him  to  the  rights  of 
a  passenger  between  the  points  named,  is  unquestioned.  The  only 
reason  for  denying  him  such  right  was  that  he  bought  from  one  who 
sold  in  violation  of  the  statute  in  Pennsylvania.  It  is  not  said  that 
the  vendor  in  New  York  is  actually  guilty  of  the  statutory  offence, 
but  that  the  defendant,  being  a  corporation  in  Pennsylvania,  and  the 
stipulated  right  of  passage  being  partly  in  Pennsylvania,  her  courts 
will  not  enforce  a  contract  resting  upon  acts  which  the  Legislature  has 
declared  criminal. 

The  presumption  is  that  the  ticket  was  properly  issued  by  the  com- 
pany, and  that  the  holder  had  the  right  to  use  it.  Such  tickets  are 
evidence  of  the  holder's  title  to  travel  on  the  railroad.  Prior  to  the 
statute  in  Pennsylvania,  it  was  lawful  for  holders  to  sell  them. 

The  property  in  them  passes  by  delivery.  The  act  of  1863  confers 
no  right  upon  a  railroad  company  to  question  passengers  as  to  when, 
or  where,  or  how  they  procured  their  tickets,  or  to  eject  them  from 
the  cars  upon  suspicion  that  the  tickets  were  sold  to  them  by  a  person 
who  was  not  an  agent  for  the  company.  At  common  law,  which  is 
deemed  in  force  in  absence  of  evidence  to  the  contrary,  the  contract 
made  by  the  plaintiff  in  Xew  York  was  valid.  It  was  executed.  X^o 
part  remained  to  be  performed.  It  vested  in  him  the  evidence  of  title 
to  a  passage  over  the  railroad.  His  act  had  no  savor  of  illegality  or 
immorality.  It  was  the  mere  purchase  of  the  obligation  of  a  common 
carrier,  to  carry  the  holder  according  to  its  terms.  The  defendant 
issued  the  obligation,  received  the  consideration,  and  became  liable  for 
performance  at  the  date  of  issue.  As  tran'^feree,  the  plaintiff  claimed 
performance.  This  is  the  contract  which  is  the  basis  of  the  cause  of 
action.  It  is  purposely  made  so  as  to  entitle  the  bona  fide  holder  to 
performance,  and  for  breach  to  an  action  in  his  own  name.  Let  it  be 
assumed  that  the  defendant  made  the  contract  in  Pennsylvania,  it  is 
quite  as  reasonable  to  assume  that  tickets  for  passengers  coming  from 
New  York  into  Pennsylvania  were  sold  in  New  York.  But  wherever 
the  contract  was  made,  it  is  true,  as  claimed  by  the  defendant,  "this 
action  is  to  enforce  not  the  contract  between  the  ticket  scalper  and  the 
plaintiff  in  error,  but  between  the  defendant  in  error  and  the  plaintiff 
in  error." 


Ch.  6)  TICKETS.  211 

The  sale  of  the  ticket  to  the  plaintiff  in  New  York  was  lawful. 
That  being  an  executed  contract,  there  is  no  question  respecting  its 
enforcement.  Surely  it  is  not  an  exception  to  the  rule  that  contracts, 
valid  by  the  law  of  the  place  where  they  are  made,  are  generally  valid 
everywhere.  Then,  as  the  plaintiff  has  a  valid  title  to  the  ticket,  the 
contract  between  the  defendant  and  himself  is  valid. 

Judgment  reversed  and  procedendo  awarded.^ 

8  In  Shankland  y.  City  of  Washington,  ,5  Pet.  390.  8  L.  Ed.  IGG  (1831),  Story, 
J.,  said:  "As  owner  and  possessor  of  the  whole  [lottery]  ticket,  if  he  had  made 
sale  of  the  whole,  *  *  *  he  would  have  substituted  another  as  possessor 
and  transferee,  to  whom  the  original  promise  of  the  corporation  would  then 
have  attached." 

The  transferabilit.v  of  a  ticket  is  not  affected  by  its  being  an  excursion 
ticket,  or  by  being  sold  at  a  reduced  i-ate.  or  by  having  lieen  used  for  the  out- 
ward trip,  or  for  any  part  of  the  journey  for  which  the  carrier  to  whom  it  is 
presented  has  not  contracted.  Evans  v.  St.  Louis,  etc..  Ky.  Co.,  11  Mo.  App. 
463  (18S2),  "holder  agrees  to  use  on  or  before  date  canceled"  ;  Carsten  v. 
No.  Pae.  R.  Co.,  44  Minn.  454.  47  N.  W.  49.  9  L.  R.  A.  GS8.  20  Am.  St.  Rep.  .589 
(1890) ;  Nichols  v.  So.  Pac.  Co.,  23  Or.  123,  31  Pac.  296,  18  L.  R.  A.  .55,  37  Am. 
St.  Rep.  664  (1892) :    The  Willamette  Valley  (D.  C.)  71  Fed.  712  (1896). 

But  a  right  under  a  single  undertaking  for  continuous  carriage  is  incapable 
of  being  divided,  and  a  ticket  for  such  carriage,  partly  used  and  then  assigned, 
is  invalid  in  the  hands  of  the  assignee.  Walker  v.  Wabash,  etc.,  Ry.  Co.,  15 
Mo.  App.  333  (1.S84).  Compare  Curlander  v.  Pullman,  etc..  Co.  (Bait.  Super. 
Ct.)  28  Chicago  Legal  News,  68,  9  Harv.  Law  Rev.  354  (1895),  right  to  occupy 
section  in  sleeping  car. 

Tickets  Expressly  Made  Nontransferable. — In  Bitterman  v.  Louisville  & 
Nashville  R.  Co..  207  U.  S.  205,  28  Sup.  Ct.  91.  52  L.  Ed.  171  (1907),  the  rail- 
road company  obtained  an  injunction  restraining  ticket  brokers  from  dealing 
in  nontransferable  round  trip  tickets.  White.  J.,  said:  "That  the  complain- 
ant had  the  lawful  right  to  sell  nontransferable  tickets  of  the  character  al- 
leged in  the  bill  at  reduced  rates  we  think  is  not  open  to  controversy,  and 
that  the  condition  of  nontransferability  and  forfeiture  embodied  in  such 
tickets  was  not  only  binding  upon  the  original  purchaser  but  upon  any  one  who 
acquired  such  a  ticket  and  attempted  to  use  the  same  in  violation  of  its  terms 
is  also  settled.  Mosher  v.  Railroad  Co.,  127  U.  S.  3!H),  8  Sup.  Ct.  1324,  32  L. 
Ed.  249.  See.  also,  Boylan  v.  Hot  Springs  Co.,  1.32  U.  S.  14(j,  10  Sup.  Ct.  50, 
33  L.  Ed.  290.  *  *  *  Any  third  person  acquiring  a  nontransferable  re- 
duced rate  railroad  ticket  from  the  original  purchaser,  being  therefore  bound 
by  the  clause  forbidding  transfer,  and  the  ticket  in  the  hands  of  all  such 
persons  being  subject  to  forfeiture  on  an  attempt  being  made  to  use  the  same 
for  passage,  it  may  well  be  questioned  whether  the  purchaser  of  such  ticket 
acquired  anything  more  than  a  limited  and  qualified  ownei'ship  thereof,  and 
whether  the'  carrier  did  not,  for  the  purpose  of  enforcing  the  forfeiture,  retain 
a  subordinate  interest  in  the  ticket  amounting  to  a  right  of  property  therein 
which  a  court  of  equity  would  protect.  Board  of  Trade  v.  Christie  Grain  & 
Stock  Co..  198  U.  S.  236,  25  Sup.  Ct.  &37.  49  L.  Ed.  1031,  and  authorities  there 
cited.  See.  also,  Sperry  &  Hutchinson  Co.  v.  Mechanics'  Clothing  Co.  (C.  C.) 
128  Fed.  800.  We  pass  this  question,  however.  becau*!e  the  want  of  merit  in 
the  contention  that  the  case  as  made  did  not  disclose  the  commission  of  a 
legal  wrong  conclusively  results  from  a  previous  decision  of  this  court.  The 
case  is  Angle  v.  Chicago,  St.  Paul,  etc.,  Ry.  Co..  151  U.  S.  1,  14  Sup.  Ct.  240, 
38  L.  Ed.  55,  where  it  was  held  that  an  actionable  wrong  is  committed  by  one 
who  'maliciously  interferes  in  a  contract  between  two  parties  and  induces  one 
of  them  to  break  that  contract  to  the  injury  of  the  other.'  That  this  prin- 
ciple embraces  a  case  like  the  present — that  is,  the  carrying  on  of  the  busi- 
ness of  purchasing  and  selling  nontransferable  reduced  rate  railroad  tickets 
for  profit  to  the  injury  of  the  railroad  company  issuing  such  tickets — is,  we 
think,  clear.     It  is  not  necessary  that  the  ingredient  of  actual  malice,  in  the 


212  THE  carrier's  undertaking.  (Part  2 


HARP  V.  SOUTHERN  RY.  CO. 

(Supreme  Court  of  Georgia,  1904.    119  Ga.  927,  47  S.  E.  206,  100  Am.  St.  Rep. 

212.) 

Harp,  a  minor  of  16,  sued  the  Southern  Railway  Company  for  a 
wrongful  ejectment.  He  alleges  that  he  bought  a  ticket  entitling 
him  to  ride  from  Atlanta  to  Topeka  Junction,  in  Upson  county,  on 
the  line  of  defendant's  road,  passing  through  Clayton;  that  while 
on  the  rear  platform  of  the  train  an  employe  of  the  company  asked 
him  how  far  he  was  going,  whereupon  the  plaintiff  showed  him  the 
ticket ;  that  the  employe  looked  at  it  and  handed  it  back  to  the  plain- 
tiff, when  the  ticket  was  blown  out  of  plaintiff's  hands ;  that  shortly 
thereafter  the  conductor  asked  the  plaintiff  for  his  ticket,  and  he,  in 
the  presence  of  the  employe,  explained  the  circumstances  of  its  loss, 
the  employe  corroborating  his  statement;  that  notwithstanding  this 
fact  the  conductor  ordered  the  plaintiff  to  leave  the  train,  and  put  his 
hand  on  him  for  the  purpose  of  removing  plaintiff  from  the  moving 
car,  and,  to  prevent  being  violently  ejected,  the  plaintiff  leaped  from 
the  car,  running  at  from  10  to  15  miles  an  hour,  about  half  a  mile 
before  reaching  Riverdale;  that,  when  plaintiff  handed  the  ticket  to 
the  employe,  he  thought  the  latter  was  the  conductor;  that  he  was 
compelled  to  walk  to  Atlanta,  14  or  15  miles ;  that  there  were  few  pas- 
sengers for  Topeka,  and  that  it  would  have  been  easy  on  arriving 
at  Riverdale  for  the  conductor  to  have  telegraphed  to  Atlanta,  and 
verified  petitioner's  statement  that  he  had  purchased  the  ticket  to  the 
station  named ;  that  petitioner  was  young  and  unaccustomed  to  travel, 
and  did  not  have  sufficient  money  to  pay  his  fare  from  Atlanta  to 
Topeka  at  the  time  a  ticket  was  demanded ;  and  that  the  manner  of 
his  ejection  was  aggravated  by  the  threats  and  commands  of  the  con- 
ductor, 

sfense  of  personal  ill  will,  should  exist  to  bring  this  controversy  within  the 
doctrine  of  the  Angle  case." 

Defenses  Available  Against  Purciiaser  in  Good  Faith.— In  Snyder  v. 
Wolfley,  8  Serg.  &  R.  (Pa.)  328  (1822),  a  lottery  ticliet  stolen  from  the  plaintiff 
thereafter  drew  a  prize.  It  was  held  that  the  plaintiff  was  entitled  to  receive 
the  money,  but  only  on  giving  indemnity  against  claim  by  another.  Gibson, 
J.,  said:  "Xow,  in  the  ease  before  us,  the  fruits  of  the  ticket  were  payable  to 
the  bearer ;  and  the  defendant  could  not  resist  payment  of  it  in  the  hands  of 
a  bona  fide  holder  for  valuable  consideration,  even  though  it  should  originally 
have  been  stolen." 

In  Frank  v.  Ingalls,  41  Ohio  St.  5G0  (1885),  a  carrier  maintained  replevin  for 
a  railroad  ticket  against  a  purchaser  in  good  faith  and  for  value  from  one 
who  had  obtained  it  by  fraud. 

In  Levinson  v.  Texas,  etc.,  Ry.  Co.,  17  Tex.  Civ.  App.  617,  43  S.  W.  901 
(1897),  a  ticket  used,  but  not  taken  up  or  canceled,  was  held  invalid  in  the 
hands  of  an  innocent  purchaser  for  value. 

See,  also.  Walker  v.  Price.  62  Kan.  327,  62  Pac.  1001.  84  Am.  St.  Rep.  392 
(1900),  to  the  effect  that  the  transferee  of  a  ticket  acquires  only  such  right  as 
appears  on  the  face  of  the  ticket,  though  his  transferror's  right,  unknown  to 
the  transferee,  was  greater. 


Ch.  6)  TICKETS.  213 

The  defendant  demurred  generally  and  specially,  on  the  grounds 
that  there  was  no  cause  of  action  set  out;  that  the  petition  was  du- 
plicitous;  that  it  was  uncertain  whether  the  action  was  for  an  illegal 
eviction,  or  for  an  abuse  of  duty  in  a  lawful  eviction.  After  argu- 
ment the  court  passed  an  order  reciting  that  "the  plaintiff  admitted 
that  the  suit  was  only  for  the  wrongful  expulsion,  and  that  the  com- 
pany had  a  regulation  authorizing  conductors  to  eject  passengers  who 
neither  paid  fare  nor  produced  a  ticket,"  and  directing  that  the  general 
demurrer  to  the  original  and  amended  petition  be  sustained,  and  the 
case  dismissed.  In  plaintift''s  brief,  he  requests  that,  if  the  judgment 
be  affirmed,  leave  be  granted  him  to  amend  by  alleging  that  the  con- 
ductor failed  to  demand  the  cash  fare. 

Lamar,  J.^  This  suit  was  for  wrongful  expulsion,  and  not  for 
damages  inflicted  upon  the  plaintiff  as  a  result  of  his  being  compelled 
to  alight  from  a  moving  train.  The  fact  that  one  actually  purchased 
a  ticket,  and  that  this  was  known  to  the  agent  who  sold  it,  or  to  the 
gatekeeper  who  examined  it,  or  to  employes  on  the  train  who  saw  it, 
would  not  relieve  the  passenger  of  the  obligation  to  surrender  it  to 
the  conductor.  Tickets  vary  in  their  terms.  Some  are  good  only  on 
certain  trains ;  others  only  on  particular  dates ;  others  require  valida- 
tion. The  mere  fact  that  the  plaintiff  has  a  ticket  does  not,  therefore, 
necessarily  establish  his  right  to  be  transported  on  a  given  train. 
These  matters  must  be  passed  on  by  the  conductor,  and  not  by  other 
employes  who  are  not  charged  with  this  duty  by  the  company.  When 
-the  conductor  makes  his  demand,  he  is  entitled  to  have  the  ticket  sur- 
rendered. He  cannot  be  required  to  hear  evidence  or  investigate  the 
bona  fides  of  the  passenger's  excuse  for  its  nondelivery,  nor  to  wait 
until  he  arrives  at  the  next  station,  and,  by  telegraphic  correspondence 
with  the  selling  agent,  undertake  to  verify  the  correctness  of  the 
plaintiff's  statement,  or  determine  the  character  and  validity  of  the 
ticket  sold. 

It  is  manifest  that  such  course  would  necessarily  give  rise  to  delay, 
and  seriously  interfere  with  the  operation  of  trains  and  the  rights 
of  the  traveling  public.  Had  the  plaintiff's  money  blown  out  of  his 
hand,  it  is  evident  that  his  misfortune  would  have  to  fall  upon  him- 
self, and  not  upon  the  company.  Such  loss  would  not  have  prevented 
his  lawful  eviction.  The  same  result  would  follow  where  the  ticket 
itself  was  lost,  for  it  might  have  come  into  the  hands  of  another,  and 
the  company  might  thereby  have  been  compelled  to  carry  two  pas- 
sengers for  one  fare.  Besides,  any  rule  allowing  an  excuse  as  a  sub- 
stitute for  a  ticket  would  give  rise  to  so  much  uncertainty  and  so 
many  possibilities  of  fraud  that  the  courts  have  uniformly  held  that 
the  failure  to  pay  the  fare  or  produce  the  ticket  warrants  an  evic- 
tion. In  factjthe  plaintiff  in  error  concedes  the  general  rule  to  be 
that  the  passenger  must  produce  his  ticket,  pay  his  fare,  or  suffer 

»  Part  of  the  opinion  relating  to  plaintiff's  right  to  amend  has  been  omitted. 


214  THE  carrier's  undertaking.  (Part  2 

expulsion.  He  insists,  however,  that  the  special  circumstances  take 
this  case  out  of  the  general  rule.  We  fail  to  find  any  case  warranting 
such  a  holding.  Those  cited  by  him,  including  Sloane  v.  Railroad 
Co.,  Ill  Cal.  668,  44  Pac.  320,  32  L.  R.  A.  193,  and  Scofield  v.  Penn- 
sylvania Co.,  112  Fed.  855,  50  C.  C.  A.  553,  56  L.  R.  A.  224,  as  well 
as  Pullman  P.  C.  Co.  v.  Reed,  75  111.  125,  20  Am.  Rep.  232,  were  on 
facts  essentially  different.  See,  on  the  general  subject,  L.  &  N.  R. 
Co.  V.  Fleming'  14  Lea  (Tenn.)  128;  Rogers  v.  Atlantic  City  R.  Co., 
57  N.  J.  Law,  703,  34  Atl.  11;  Fetter  on  Carriers,  §  279.  Compare 
Southern  Ry.  Co.  v.  De  Saussure,  116  Ga.  53,  42  S.  E.  479 ;  G.  S.  &  F. 
Ry.  Co.  V.  Asmore,  88  Ga.  529,  15  S.  E.  13,  16  L.  R.  A.  53. 

Pleadings  are  to  be  strictly  construed  against  the  pleader.  Here  it 
affirmatively  appears  that  plaintiff  did  not  have  funds  with  which  to 
pay  the  cash  fare.  *  *  *  There  is  nothing  in  the  facts  here  to  re- 
quire the  exercise  of  any  discretionary  power  by  this  court  to  permit 
such  amendment.    Judgment  affirmed.^" 

10  Ace.  Louisville,  etc..  R.  Co.  v.  Fleminsr.  14  T^a  (Tenn.)  ]2«  (1884).  ticket 
lost  after  being  shown  at  gate  and  seen  by  passengers  on  train :  Tex.  &  P. 
R.  Co.  V.  Smith.  38  Tex.  Civ.  App.  4.  84  S.  W.  852  (190.5),  trunk  check  offered 
as  proof  of  having  had  ticket.  And  see  Nutter  v.  So.  Ry..  78  S.  W.  470.  2.t 
Ky.  Law  Rep.  1700  (1004).  ticket  intrusted  to  fellow  passenger,  who  was  left 
behind  at  station  ;  Crawford  v.  Cin.,  etc..  R.  Co..  26  Ohio  St.  .580  (187.5).  owner 
of  lost  nontransferable  mileage  ticket  not  entitled  to  be  carried,  though  rail- 
road refused  to  replace  it:  So.  Ry.  Co.  v.  De  Saussure.  116  Ga.  53.  42  S.  E. 
479  (1902),  railroad,  though  tendered  indemnity,  not  bound  to  issue  duplicate 
of  lost  reduced  rate  ticket  good  for  so  many  trips  on  presentation  to  con- 
ductor. 

Compare  Pullman  Co.  v.  Reed,  75  111.  125.  20  Am.  Rep.  232  (1874),  where  a 
passenger,  after  showing  his  sleeping  car  ticket  to  the  porter  who  pointed, 
out  his  berth,  lost  the  ticket,  but  obtained  from  the  ticket  agent  a  certificate 
that  he  had  paid  for  that  berth.  Scholfield.  J.,  said:  "We  think  the  better  rule 
is  to  require  that,  where  the  proof  is  clear  and  satisfactory,  as  it  was  in  the 
present  case,  the  applicant  for  the  berth  has  bought  his  ticket,  but  has  lost 
it,  and  it  is  limited  to  a  particular  lierth  and  trip,  and  the  circumstances  are 
such  that  it  is  reasonably  certain  the  company  cannot  be  defrauded  by  the 
ticket  being  in  the  hands  of  another,  he  should  have  the  berth.  *  *  *  lie 
may  purchase  for  another,  or,  purchasing  for  himself,  may  subsequently 
change  his  mind  and  sell  to  another.  A  contest  might  thus  arise  between  one 
claiming  the  berth  because  he  had  purchased  the  ticliet.  and  another  claim- 
ing it  because  he  was  the  owner  of  the  ticket,  leaving  the  company  to  act  at 
its  peril  in  deciding  between  them." 

In  Jerome  v.  Smith.  48  Yt.  230,  21  Am.  Rep.  125  (1876),  a  conductor  took 
up  a  ticket,  and  "as  an  equivalent  therefor"  put  a  check  in  the  passenger's 
hatband.  It  was  not  a  through  train,  and  the  passenger  had  to  change  to  a 
train  in  charge  of  another  conductor.  There  was  no  evidence  that  he  knew 
there  would  be  a  change  of  conductors.  When  called  on  for  his  ticket,  he 
could  not  find  his  check,  and  was  ejected  for  refusing  to  pay  fare.  It  was 
held  that  the  action  of  the  carrier  was  justified.  Wheeler,  J.,  said:  "When 
the  plaintiff  bought  the  ticket  at  Worcester,  with  coupons  attached,  entitling 
the  holder  to  ride  over  that  part  of  defendants'  road  he  was  riding  on  when 
ejected,  he  did  not  make  any  agreement  with  them  or  their  agents  that  they 
would  carry  him  in  person  over  it  as  carriers  agi'ee  to  carry  particular  pack- 
ages over  their  routes;  but  he  bought  what  was  symbolic  evidence  of  a  right 
that  whoever  should  have  it  might  ride,  and  what  any  other  person  could  use 
as  well  as  he.  The  title  to  it,  and  right  to  a  passage  upon  it,  would  pass  by 
mere  delivery,  and  whoever  should  have  it  could  pay  the  fare  of  a  passenger 


Ch.  6)  TICKETS.  215 

FREDERICK  v.  MARQUETTE  H.  &  O.  R.  CO. 

CSupreme  Court  of  Michigan,  1ST7.    37  Mich.  342,  26  Am.  Rep.  531.) 

IMarston,  J.^^  This  is  an  action  on  the  case,  brought  to  recover" 
damages  for  being  unlawfully  ejected  and  put  ofif  a  train  of  cars  by 
the  conductor  of  the  train.  The  evidence  on  the  part  of  the  plain- 
tiff tended  to  show  that  on  the  evening  of  January  29,  1876,  he  went 
to  the  regular  ticket  office  of  the  defendant  at  Ishpeming  and  asked 
for  a  ticket  to  Marquette,  presenting  to  the  agent  in  charge  of  the 
office  $1  from  which  to  make  payment  therefor;  that  the  agent  re- 
ceived the  money,  handed  plaintiff  a  ticket  and  some  change,  retain- 
ing 65  cents  for  the  ticket,  the  regular  fare  to  Marquette ;  that  plain- 
tiff did  not  attempt  to  read  what  was  on  his  ticket,  nor  did  he  count 
the  change  received  back  until  next  morning,  or  notice  it  until  then  ; 
that  he  went  on  board  the  train  bound  for  Marquette,  and  after  the 
train  left  the  station  the  conductor  took  up  the  ticket,  giving  him  no 
check  to  indicate  his  destination,  but  at  the  time  telling  him  his  ticket 
was  only  for  ^Morgan;  that  when  the  train  reached  Morgan  the  con- 
ductor told  the  plaintiff'  he  must  get  off  there  or  pay  more  fare ;  that 
if  he  wanted  to  go  to  ^^larquette  he  must  pay  35  cents  more.  Plain- 
tiff insisted  he  had  paid  his  fare  and  purchased  his  ticket  to  ]\Iarquette, 
and  refused  to  pay  the  additional  fare,  w^hereupon  he  was  ejected  from 
the  train,  etc. 

On  the  part  of  the  defendant  evidence  was  given  tending  to  show 
that  the  ticket  purchased  and  presented  to  the  conductor  was  in  fact 
a  ticket  for  Morgan,  and  not  for  Marquette.  Under  the  pleadings 
and  charge  of  the  court,  other  evidence  in  the  case  and  questions 
sought  to  be  raised  need  not  be  referred  to,  and  as  the  real  gist  of  the 

with  it  by  doliverin?  it  in  payment :  but  the  mere  fact  of  bavins  had  it,  with- 
out having  it  to  deliver  in  payment  on  reasonable  request,  would  not  entitle 
any  one  to  the  passage,  any  more  than  having  a  sufficient  amount  of  money 
to'pav  the  fare  with,  without  paying  it,  would.  *  *  *  But,  according  to 
the  facts,  the  conductor  did  not  take  the  coupon  as  an  equivalent  for  the  full 
passage,  but  only  for  the  passage  so  far  as  he  was  to  go  as  conductor,  and 
gave  the  plaintiff  the  white  check  as  evidence  in  lieu  of  the  coupon,  more 
symbolic,  but  equally  effective  of  the  right  to  a  passage  the  rest  of  the  way. 
*  *  *  And  although  it  was  delivered  to  him  only  by  placing  it  in  his  hat- 
band, as  he  did  not  object,  that  was  as  much  a  delivery  to  him  as  placing  it 
in  his  lap  or  in  his  hand  would  have  been,  and  was  sufficient  to  invest  him 
with  the  ownership  of  it,  and  to  bind  him  to  take  care  of  it  as  his  own  prop- 
erty. While  he  held  thai  check  he  had  not  paid  his  fare  beyond  where  the 
conductor  was  to  go,  but  had  what  would  pay  it,  or  that  of  any  other  person, 
the  rest  of  the  way.  *  *  *  When  he  had  lost  it,  the  loss  was  his,  and  he 
was  situated  as  he'  would  have  been  if  the  coupon  had  been  returned  to  him. 
and  he  had  lost  that,  and  as  any  one  would  be  who  had  bought  a  ticket  to  an 
opera  or  a  lecture,  or  that  would  entitle  the  holder  of  it  to  any  other  privilege, 
and  had  lost  it.  Having  lost  it,  he  was  called  upon  by  the  proper  conductor 
to  pay  his  fare.  He  had  not  any  ticket  or  check  to  pay  it  with,  and  refused 
to  pay  it  in  money,  consequently,  there  was  a  refusal  to  pay  it  at  all,  and  the 
conductor  rightfully  expelled  him  from  the  train." 
11  Part  of  the  opinion  of  Marston,  J.,  is  omitted. 


216  THE  carrier's  undertaking.  (Part  2 

action  was  for  the  expulsion  from  the  cars  by  the  conductor,  the  above 
statement  is  deemed  sufficient  to  a  proper  understanding  of  the 
case. 


*     * 


It  is  within  the  common  knowledge  or  experience  of  all  travelers 
that  the  uniform  and  perhaps  the  universal  practice  is  for  railroad 
companies  to  issue  tickets  to  passengers  with  the  places  designated 
thereon  from  whence  and  to  which  the  passenger  is  to  be  carried, 
that  these  tickets  are  presented  to  the  conductor  or  person  in  charge 
of  the  train,  and  that  he  accepts  unhesitatingly  of  such  tickets  as 
evidence  of  the  contract  entered  into  between  the  passenger  and  his 
principal.  It  is  equally  well  known  that  the  conductor  has  but  sel- 
dom, if  ever,  any  other  means  of  ascertaining,  within  time  to  be  of  any 
avail,  the  terms  of  the  contract,  unless  he  relies  upon  the  statement 
of  the  passenger,  contradicted  as  it  would  be  by  the  ticket  produced, 
and  that  even  in  a  very  large  majority  of  cases,  owing  to  the  amount 
of  business  done,  the  agent  in  charge  of  the  office,  and  who  sold  the 
ticket,  could  give  but  very  little,  if  any,  information  upon  the  sub- 
ject. That  this  system  of  issuing  tickets,  in  a  very  large  majority  of 
cases,  works  well,  causing  but  very  little,  if  any,  annoyance  to  pas- 
sengers generally,  must  be  admitted.  There,  of  course,  will  be  cases 
where  a  passenger  who  has  lost  his  ticket,  or  where  through  mistake ' 
the  wrong  ticket  had  been  delivered  to  him,  will  be  obliged  to  pay 
his  fare  a  second  time  in  order  to  pursue  his  journey  without  de- 
lay, and  if  unable  to  do  this,  as  will  sometimes  be  the  case,  very  great 
delay  and  injury  may  result  therefrom.  Such  delay  and  injury  would 
not  be  the  natural  result  of  the  loss  of  a  ticket  or  breach  of  the  con- 
tract, but  would  be,  at  least  in  part,  in  consequence  of  the  pecuniary 
circumstances  of  the  party.  Such  cases  are  exceptional,  and  however 
unfortunate  the  party  may  be  who  is  so  situate,  yet  we  must  remem- 
ber that  no  human  rule  has  ever  yet  been  devised  that  would  not  at 
times  injuriously  affect  those  it  was  designed  to  accommodate.  This 
method  of  purchasing  tickets  is  also  of  decided  advantage  to  the  pub- 
lic in  other  respects.  It  enables  them  to  purchase  tickets  at  times 
and  places  deemed  suitable,  and  to  avoid  thereby  the  crowds  and  de- 
lays they  would  otherwise  be  subject  to.  Were  no  tickets  issued,  and 
each  passenger  compelled  to  pay  his  fare  upon  the  cars,  inconvenience 
and  delay  would  result  therefrom,  or  the  officers  in  charge  of  the  train 
to  collect  fares  would  be  increased  in  numbers  to  an  unreasonable  ex- 
tent, while  at  fairs  and  places  of  public  amusement,  where  tickets  are 
issued  and  sold  entitling  the  purchaser  to  admission  and  a  seat,  we 
can  see  and  appreciate  the  confusion  which  would  exist  if  no  tickets 
were  sold,  or  if  the  party  presenting  the  ticket  were  not  upon  such 
occasions  to  be  bound  by  its  terms. 

How,  then,  is  the  conductor  to  ascertain  the  contract  entered  into 
between  the  passenger  and  the  railroad  company  where  a  ticket  is 
purchased  and  presented  to  him?  Practically  there  are  but  two  ways 
— one,  the  evidence  afforded  by  the  ticket ;  the  other,  the  statement  of 


Ch.  6)  TICKETS.  217 

the  passenger  contradicted  by  the  ticket.  Which  should  g-overn?  In 
judicial  investigations  we  appreciate  the  necessity  of  an  obHgation 
of  some  kind  and  the  benefit  of  a  cross-examination.  At  common  law^ 
parties  interested  were  not  competent  witnesses,  and  even  under  our 
statute  the  witness  is  not  permitted,  in  certain  cases,  to  testify  as  to 
facts,  which,  if  true,  were  equally  within  the  knowledge  of  the  op- 
posite party,  and  he  cannot  be  procured.  Yet  here  would  be  an  in- 
vestigation as  to  the  terms  of  a  contract,  where  no  such  safeguards 
could  be  thrown  around  it,  and  where  the  conductor,  at  his  peril,  would 
have  to  accept  of  the  mere  statement  of  the  interested  party.  I  seri- 
ously doubt  the  practical  workings  of  such  a  method,  except  for  the 
purpose  of  encouraging  and  developing  fraud  and  falsehood,  and  I 
doubt  if  any  system  could  be  devised  that  would  so  much  tend  to  the 
disturbance  and  annoyance  of  the  traveling  public  generally.  There 
is  but  one  rule  which  can  safely  be  tolerated  with  any  decent  regard  to 
the  rights  of  railroad  companies  and  passengers  generally.  As  be- 
tween the  conductor  and  passenger,  and  the  right  of  the  latter  to 
travel,  the  ticket  produced  must  be  conclusive  evidence,  and  he  must 
produce  it  when  called  upon,  as  the  evidence  of  his  right  to  the  seat 
he  claims.  Where  a  passenger  has  purchased  a  ticket  and  the  con- 
ductor does  not  carry  him  according  to  its  terms,  or  if  the  company, 
through  the  mistake  of  its  agent,  has  given  him  the  wrong  ticket,  so 
that  he  has  been  compelled  to  relinquish  his  seat,  or  pay  his  fare  a 
second  time  in  order  to  retain  it,  he  would  have  a  remedy  against  the 
company  for  a  breach  of  the  contract,  but  he  would  have  to  adopt  a 
declaration  differing  essentially  from  the  one  resorted  to  in  this  case. 

We  have  not  thus  far  referred  to  any  authorities  to  sustain  the 
views  herein  taken.  If  any  are  needed,  the  following,  we  think,  will 
be  found  amply  sufficient,  and  we  do  not  'consider  it  necessary  to 
analyze  or  review  them:  Townsend  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co., 
56  N.  Y.  298,  15  Am.  Rep.  419 ;  Hibbard  v.  N.  Y.  &  E.  R.  R.,  15  N. 
Y.  470;  Bennett  v.  N.  Y.  C.  &  H.  R.  R.,  5  Hun  (N.  Y.)  600;  Downs 
V.  N.  Y.  &  N.  H.  R.  R.,  36  Conn.  287,  4  Am.  Rep.  77;  C,  B.  &  O. 
R.  R.  V.  Griffin,  68  111.  499 ;  Pullman  P.  C.  Co.  v.  Reed,  75  111.  125, 
20  Am.  Rep.  232  [ante,  p.  214,  note]  ;  Shelton  v.  Lake  Shore,  etc.,  Ry. 
Co.,  29  Ohio  St.  214. 

I  am  of  opinion  that  the  judgment  should  be  affirmed,  with  costs. 

CooLEY,  C.  J.,  concurred. 

Graves,  J.  By  mistake  the  company's  ticket  agent  issued  and 
plaintiff  accepted  a  ticket  covering  a  shorter  distance  than  tiiat  bar- 
gained and  paid  for ;  and  having  ridden  under  it  the  distance  which  it 
authorized,  and  refusing  to  repay  for  the  space  beyond,  the  plaintiff 
was  removed  from  the  cars. 

This  removal  may,  or  may  not,  have  constituted  a  cause  of  action, 
but  it  is  not  the  cause  of  action  charged.  The  declaration  sets  up 
that  plaintiff's  ticket  was  a  proper  one   for  the  whole  distance  and 


218  THE  carrier's  undertaking.  (Part  2 

that  he  was  removed  in  violation  of  the  right  which  the  ticket  made 
known  to  the  conductor. 

There  was  no  proof  of  the  case  alleged,  and  I  agree  therefore  in 
affirming  the  judgment. 

Campbell,  J.  The  plaintiff's  cause  of  action  in  this  case  was  for 
the  failure  of  the  company  to  carry  him  to  a  destination  to  which  he 
had  paid  the  passage  money,  and  the  immediate  occasion  for  his  re- 
moval from  the  cars  was  that  he  was  given  a  wrong  ticket,  and  was 
not  furnished  with  such  a  one  as  the  conductor  was  instructed  to 
recognize  as  entitling  him  to  the  complete  carriage.  His  declaration 
should  have  been  framed  on  this  theory.  Had  it  been  so  framed,  I 
am  not  prepared  to  say  that  he  may  not  have  had  a  right  of  action 
for  more  than  the  difference  in  the  passage  money. 

But  as  he  counted  on  the  failure  of  the  conductor  to  respect  a  cor- 
rect ticket,  and  it  appears  that  the  conductor  gave  him  all  the  rights 
which  the  ticket  produced  called  for,  there  was  no  cause  of  action  made 
out  under  the  declaration,  and  the  rule  of  damages  need  not  be  consid- 
ered.   I  concur  in  affirming  the  judgment. 


HUFFORD  V.  GRAND  RAPIDS  &  I.  R.  CO. 

(Supreme  Court  of  Michigan,  1SS7.    64  Mich.  G31,  31  N.  W.  544,  8  Am.  St.  Rep. 

859.) 

Sherwood,  J.^-  In  this  case  the  plaintiff  sues  the  defendant  for 
an  alleged  assault  and  battery,  which  he  avers  was  committed  upon 
him  on  the  19th  day  of  September,  1882,  by  one  of  the  conductors 
of  the  defendant,  while  he  was  riding  upon  one  of  its  trains,  without 
any  justification.  The  case  was  tried  before  Judge  Montgomery  in 
the  Kent  circuit  by  jury,  and  the  plaintiff"  tailed  to  recover,  and  now 
brings  error. 

*  *  *  The  ticket  held  by  the  plaintiff,  when  purchased  by  him 
at  IManton,  was  represented  to  him  by  the  agent  as  good  to  Traverse 
City.  *  *  *  The  ticket  purchased  was  part  of  an  excursion  ticket, 
good  when  first  issued  for  a  ride  from  Sturgis  to  Traverse  City.  Aft- 
er the  plaintiff  had  purchased  and  paid  for  the  ticket,  he  observed  it 
did  not  look  like  the  tickets  he  had  been  accustomed  to  purchase,  and 
thereupon  he  returned  to  the  ticket  office,  and  asked  the  agent  if  it 
was  good,  and  was  informed  by  the  agent  it  was.  He  then  entered 
the  defendant's  passenger  coach,  and  the  train  moved  on  for  Walton 
Junction. 

When  the  conductor  asked  for  the  plaintift''s  fare,  he  delivered  to 
him  the  ticket  he  had  thus  purchased.     The  conductor  told  plaintiff' 

12  Parts  of  the  opinion  have  been  omitted. 


Cb.  6)  TICKETS.  219 

he  could  not  receive  it  for  his  fare,  whereupon  plaintiff  informed  the 
conductor  that  he  bought  the  ticket  at  Manton  of  the  company's 
agent,  and  was  informed  by  him  it  was  good;  that  he  paid  the  agent 
for  the  ticket,  and  he  should  not  pay  his  fare  again.  The  conductor 
then  laid  his  hand  upon  plaintiff's  shoulder,  and  rang  the  bell,  and 
told  the  plaintiff,  unless  he  paid  the  fare,  which  was  25  cents,  he 
would  put  the  plaintiff  off  the  train.  The  plaintiff  then  under  protest 
paid  the  fare  demanded  of  him. 

These  facts  appear  by  the  record,  and  are  not  disputed.  Wheth- 
er or  not  the  ticket  had  been  canceled  between  Grand  Rapids  and 
Walton  Junction  by  conductor's  marks  w^as  a  fact  contested  before 
the  jury,  and  upon  this  subject  the  court  charged  the  jury:  "If  the 
ticket  had  been  cancelled  between  those  points,  then  upon  its  face  it 
was  an  invalid  ticket,  and,  when  the  fact  was  called  to  the  attention 
of  the  plamtiff,  he  had  no  longer  a  right  to  insist  upon  being  trans- 
ferred over  this  line  upon  that  ticket."     *     *     * 

There  seems  to  be  no  question  but  that  the  plaintiff  purchased  his 
ticket  of  an  agent  of  the  company,  who  had  the  right  to  sell  the  same 
and  receive  the  plaintiff's  money  therefor;  that  the  ticket  covered  the 
distance  between  the  two  stations,  and  was  purchased  by  the  plain- 
tiff in  perfect  good  faith ;  that  the  ticket  was  genuine,  and  was  issued 
by  the  company,  and  one  which  its  agent  had  the  right  to  sell  to  pas- 
sengers. The  plaintiff  had  a  right  to  rely  upon  the  statements  of  the 
agent  that  it  was  good,  and  entitled  him  to  a  ride  between  the  two 
stations.  It  was  a  contract  for  a  ride  between  the  two  stations  that 
the  defendant's  agent  had  a  right  to  make,  and  did  make,  with  the 
plaintiff*. 

The  ticket  given  by  the  agent  to  the  plaintiff  was  the  evidence 
agreed  upon  by  the  parties,  by  which  the  defendant  should  thereafter 
recognize  the  rights  of  plaintiff  in  his  contract ;  and  neither  the  com- 
pany nor  any  of  its  agents  could  thereafter  be  permitted  to  say  the 
ticket  was  not  such  evidence,  and  conclusive  upon  the  subject.  Pas- 
sengers are  not  interested  in  the  internal  affairs  of  the  companies 
whose  coaches  they  ride  in,  nor  are  they  required  to  know  the  rules 
and  regulations  made  by  the  directors  of  the  company  for  the  con- 
trol of  the  action  of  its  agents  and  the  management  of  its  affairs. 

When  the  plaintiff  told  the  conductor  on  the  train  that  he  had  paid 
his  fare,  and  stated  the  amount  he  paid  to  the  agent  wdio  gave  him 
the  ticket  he  presented,  and  told  him  it  was  good,  it  was  the  duty 
of  the  conductor  to  accept  the  statement  of  the  plaintiff  until  he  found 
out  it  was  not  true,  no  matter  what  the  ticket  contained  in  words, 
figures,  or  other  marks.  All  sorts  of  people  travel  upon  the  cars; 
and  the  regulations  and  management  of  the  company's  business  and 
trains  wdiich  would  not  protect  the  educated  and  uneducated,  the  wise 
and  the  ignorant,  alike,  would  be  unreasonable  indeed.  On  the  un- 
disputed facts  in  this  case,  I  think  the  plaintiff'  was  entitled  to  go  to 


220  THE  carrier's  undertaking.  (Part  2 

Walton  Junction  upon  the  ticket  he  presented  to  the  conductor.  Ma- 
roney  v.  Old  Colony  &  N.  Ry.  Co.,  106  Mass.  153,  8  Am.  Rep.  305 ; 
Murdock  v.  Boston  &  A.  R.  Co.,  137  Mass.  293,  50  Am.  Rep.  307. 
See  this  case  in  53  Mich.  118, 18  N.  W.  580.     *     *     * 

The  judgment  must  be  reversed  and  a  new  trial  granted.^ ^ 


INDIANAPOLIS  ST.  RY.  CO.  v.  WILSON. 

(Supreme  Court  of  Indiana,  1903.    161  Ind.  153,  66  N.  E.  950,  100  Am.  St.  Rep. 

261.) 

Jordan,  J.^*  Action  by  appellee  against  appellant  to  recover  dam- 
ages for  an  unlawful  expulsion  from  one  of  its  street  cars.     A  trial 

13  Ace.  Murdock  v.  Boston,  etc.,  R.  Co.,  137  Mass.  293,  50  Am.  Rep.  307  (18S4), 
ticket  sold  with  statement  that  in  spite  of  being  punched  it  %Yas  valid;  Erie 
K.  Co.  V.  Winter,  143  U.  S.  60,  12  Sup.  Ct.  356,  36  L.  Ed.  71  (1S92),  canceled 
ticket  issued  as  good  for  stopover ;  Kansas  City,  etc.,  R.  Co.  v.  Foster,  134 
Ala.  244,  32  South.  773,  92  Am.  St.  Rep.  25  (1902),  ticket  to  Byhalia  issued 
with  statement  that  such  a  ticket  was  good  to  Birmingham  ;  111.  Cent.  R.  Co. 
V.  Harper,  83  Miss.  560,  35  South.  704,  64  L.  R.  A.  283,  102  Am.  St.  Rep.  469 
(1904),  ticket  sold  with  statement  it  was  good  over  either  route;  Scofield  v. 
Pa.  Co.,  112  Fed.  855,  50  C.  C.  A.  553,  56  L.  R.  A.  224  (1902),  ticket  sold  with 
statement  it  was  cood  for  stopover.  And  see  Kansas  City,  etc.,  R.  Co.  v.  Little, 
66  Kan.  378,  71  Pac.  820,  61  L.  R.  A.  122,  97  Am.  St.  Rep.  376  (1903),  ticket 
holder  who  took  a  train  at  direction  of  ticket  seller  and  brakeman  recovered 
damages  for  being  ejected,  though  it  did  not  carry  passengers  or  stop  at 
destination. 

In  the  following  cases  the  passenger  was  held  to  be  entitled  to  ride  on  a 
ticket  that  seemed  invalid:  So.  Pac.  Co.  v.  Bailey  (Tex.  Civ.  App.)  91  S.  W. 
820  (1906),  nontransferable  tickets  with  blanks  for  description  and  signature 
of  passenger  filled  in  by  description  and  signature  of  daughter  who  bought 
for  herself  and  mother ;  Chicago,  etc.,  R.  Co.  v.  Pendergast,  75  111.  App.  133 
(1897),  ticket  "good  only  for  passage  of  purchaser  whose  name  and  description 
appear  in  margin,"  signed  to  selling  agenfs  knowledge  in  assumed  name; 
Erie  R.  Co.  v.  Littell,  128  Fed.  546,  63  C.  C.  A.  44  (1904),  defendant  company 
succeeded  through  foreclosure  sale  to  operation  of  road  formerly  owned  by 
Insolvent  company,  and  defendant's  agent  violated  instructions  by  selling 
tickets,  left  on  hand,  which  bore  its  predecessor's  name :  Phil.  Co.  v.  Rice,  64 
Md.  63,  21  Atl.  97  (1885),  previous  conductor  marked  ticket  "Canceled  by  mis- 
take," the  rules  requiring  him  to  correct  mistakes  by  the  word  "Error,"  sub- 
scribed by  his  initials ;  Ellsworth  v.  C,  B.  &  Q.  R.  Co..  95  Iowa,  98,  63  N.  W. 
584,  29  L.  R.  A.  173  (1895),  ticket  "good  one  day  from  date  of  sale,"  stamped 
bv  mistake  as  sold  several  days  before.  Compare  Monuier  v.  N.  Y.,  etc.,  R.  Co., 
175  N.  Y.  281,  67  N.  E.  569,  62  L.  R.  A.  357,  96  Am.  St.  Rep.  619  (1903),  post, 
p.  556. 

In  the  following  cases  tickets  were  held  to  entitle  the  holder  to  carriage, 
though  in  appearance  doubtful:  Laird  v.  Traction  Co..  166  Pa.  4,  31  Atl.  51 
(1895).  transfer  punched  bv  mistake  at  two  different  hours;  Trice  v.  Ches. 
&  O.  Ry.  Co.,  40  W.  Va.  271,  21  S.  E.  1022  (1895),  mileage  ticket  good  for  a 
year,  stamped  "Sold  March,  1892,  to  expire  March,  1894,"  the  figure  4  being 
altered  from  3  in  ink;  Northern  Cent.  Ry.  Co.  v.  O'Connor,  76  Md.  207,  24 
Atl.  449,  16  L.  R.  A.  449,  35  Am.  St.  Rep.  422  (1892).  date  illegible ;  Wight- 
man  V.  Chicago,  etc.,  R.  Co.,  73  Wis.  169,  40  N.  W.  689,  2  L.  R.  A.  185,  9  Am. 
St.  Rep.  778  (1888),  not  good  if  "detached"  means  "intentionally  detached," 
and  a  coupon  is  good  though  accidentally  separated  from  the  body  of  the 
ticket.    And  see  Koch  v.  N.  Y.  City  R.  Co.' (Sup.)  95  N.  Y.  Supp.  559  (1905). 

1*  Parts  of  the  opinion  have  been  omitted. 


€h,  6)  TICKETS.  221 

by  jury  resulted  in  appellee  being  awarded  damages,  and,  over  ap- 
pellant's motion  for  a  new  trial,  judgment  was  rendered  on  the  ver- 
dict of  the  jury.  From  this  judgment  appellant  appeals,  and  the  sole 
question  involved  is,  can  the  expulsion  of  appellee  by  appellant  from 
its  car,  under  the  circumstances,  be  legally  justified?    *     *     * 

It  is  shown  that  appellee  on  the  evening  of  September  23,  1899, 
took  passage  upon  one  of  appellant's  cars  running  on  and  over  its  Col- 
lege Avenue  line,  and  upon  paying  his  fare  he  requested  the  con- 
ductor in  charge  of  said  car  to  give  him  a  transfer  ticket  to  the  Vir- 
ginia Avenue  line,  his  destination  being  a  point  on  the  latter  line.  Up- 
on his  taking  passage  on  one  of  the  cars  running  on  and  over  the 
Mrginia  Avenue  line  the  conductor  in  charge  of  said  car  demanded 
fare  of  appellee,  and  the  latter  tendered  to  said  conductor  the  transfer 
ticket  which  he  had  received  from  the  College  Avenue  conductor. 
*  *  *  In  punching  the  transfer  ticket  in  question  it  appears  that  the 
College  Avenue  conductor  had  awkwardly  used  the  punch,  and,  in- 
stead of  plainly  indicating  that  appellee  had  been  transferred  to  the 
Virginia  Avenue  line,  he  punched  out  what  might  be  said  to  be  the  en- 
tire space  opposite  South  East  street,  and  also  a  part  of  the  Virginia 
Avenue  space,  the  puncture  made  extending  across  the  line  dividing 
the  two  spaces,  and  this,  as  it  seems,  gave  rise  to  the  controversy 
between  the  appellee  and  the  conductor  of  the  Virginia  Avenue  line; 
the  latter  insisting  that  the  ticket  indicated  that  the  former  had  been 
transferred  to  the  South  East  Street  line,  while  appellee,  on  the  other 
hand,  insisted  that  he  had  requested  a  transfer  to  the  Virginia  Av- 
enue line,  and  stated  that  he  believed  the  ticket  indicated  such  trans- 
fer. Upon  appellee's  refusal  to  pay  the  additional  fare  which  the  con- 
ductor on  the  Virginia  Avenue  Hne  demanded,  he  was  forcibly  ejected 
from  the  car  by  the  conductor  and  motorman.     *     *    * 

There  is  a  line  of  decisions  which  affirm  the  rule  that  the  ticket 
must  be  considered  as  conclusive  evidence  of  the  passenger's  rights, 
although  it  may  not,  in  its  true  sense,  express  or  evidence  the  contract 
into  which  the  passenger  and  the  carrier  entered.  These  cases  hold 
that,  in  the  event  a  ticket  is  defective,  the  defects  of  which  are  due 
to  the  negligence  or  carelessness  of  the  agent  or  agents  of  the  car- 
rier, then,  under  the  circumstances,  the  expulsion  of  the  holder  there- 
of, upon  his  refusal  to  pay  the  additional  fare  required,  is  justified. 
While,  on  the  other  hand,  there  is  another  long  line  of  cases  which 
rule  to  the  contrary,  and  deny  the  conclusive  force  of  a  ticket  fur- 
nished by  the  carrier  to  the  passenger.  The  latter  cases,  in  effect,  af- 
firm that  the  ticket  is  only  the  evidence  of  the  contract  as  made  be- 
tween the  passenger  and  the  carrier,  and,  if  it  fails  to  disclose  the 
true  contract,  its  infirmity  or  fault  in  this  respect  must  be  charged 
to  the  carrier,  and  the  latter  is  liable  for  the  natural  consequences 
resulting  by  reason  of  the  defects  in  the  ticket  due  to  the  negligence 
of  its  agents.  They  affirm  the  rule  that,  inasmuch  as  the  passenger  is 
neither  required  under  the  law,  nor  in  fact  permitted,  to  print,  write, 


222  THE  carrier's  undertaking.  (Part  2 

or  stamp  the  ticket,  or  to  have  anything  to  do  whatever  with  its  prep- 
aration, this  privilege  or  right  being  reserved  by  the  carrier  to  it- 
self, therefore  the  passenger  has  the  right  to  believe  or  presume,  in 
the  absence  of  notice  to  the  contrary,  that  the  ticket  furnished  and  de- 
livered to  him  is  a  correct  expression  of  the  contract  as  made  between 
him  and  the  carrier.  The  following  authorities  or  cases  decided  by  the 
higher  courts  of  other  states  are  adverse  to  the  contention  of  counsel 
for  appellant  in  the  case  at  bar.     [The  citations  are  omitted.] 

The  extent  to  which  these  cases  support  the  doctrine  in  question 
and  sustain  appellee's  right  to  a  recovery  in  this  case  is  that  where 
the  passenger  is  aboard  the  cars  of  the  carrier  without  the  proper 
evidence  or  token  of  his  right  of  passage,  which  is  due  to  the  mistake 
or  fault  of  the  carrier's  agent,  and  not  to  the  fault  of  the  passenger, 
then,  under  such  circumstances,  the  carrier's  agent  in  charge  of  the 
train  must  heed  or  accept  the  reasonable  explanations  of  the  passen- 
ger in  regard  to  the  ticket  in  dispute.  An  examination  of  the  cases 
pro  and  con  upon  the  question  herein  involved  convinces  us  that  the 
weight  of  authority  and  the  better  reason  are  against  the  contention 
of  counsel  for  appellant,  and  that  the  right  of  the  appellee  to  recover 
under  the  facts  in  this  appeal  is  well  supported  by  the  decisions  of 
our  own,  as  well  as  other  courts.  *  *  *  There  can  be  no  sound 
reason  advanced  for  holding  that  such  a  voucher  or  token,  as  is  a 
passage  ticket  in  its  ordinary  form,  must  be  regarded  or  considered  as 
the  exclusive  evidence  of  the  passenger's  right  to  be  carried,  and  that 
the  agent  of  the  carrier  may,  over  the  reasonable  explanations  or 
statements  of  the  passenger  in  regard  to  his  right  to  be  carried  there- 
on, expel  him  from  the  car  on  which  he  has  taken  passage,  unless 
he  pays  the  extra  fare  demanded,  without  subjecting  the  carrier  to 
damages  by  reason  of  such  expulsion,  where  the  latter,  under  the 
circumstances,  as  between  the  passenger  and  the  carrier  company,  is 
shown  to  have  been  wrongful. 

When  the  case  at  bar,  under  the  facts,  is  tested  by  the  principles 
affirmed  by  the  authorities  to  which  we  have  referred,  the  conclusion 
which  we  reach  will  be  found  to  be  amply  sustained  upon  cogent  and 
sound  reason.  The  fact  that  the  wrong  of  which  appellee  complains 
may  be  said  to  be  due  to  the  combined  faults  of  two  of  appellant's 
conductors  or  agents  exerts  no  material  influence  over  his  right  to 
recover,  for,  under  the  circumstances,  appellant  must  be  presumed 
to  have  been  present  and  acting  at  the  time  through  the  agency  of  the 
conductor  who  issued  the  transfer  ticket,  and  through  the  agency  of 
the  other,  who,  over  the  explanations  of  appellee  in  regard  to  the  issue 
of  the  ticket,  refused  to  accept  it,  and  thereupon  expelled  him  from 
the  car  upon  which,  as  shown,  he  was  entitled  to  be  carried. 

The  mistake  which  the  first  conductor  made  in  failing  plainly  to 
point  out  or  indicate  upon  the  transfer  ticket  the  line  to  which  appel- 
lee had  requested  to  be  transferred  in  the  eye  of  the  law,  must  be  con- 
sidered as  the  mistake  or  fault  of  the  appellant.     And  the  latter  must 


Ch.  6)  TICKETS.  223 

be  treated  or  regarded  as  a  wrongdoer  in  not  honoring  the  ticket  when 
it  was  presented  by  appellee  to  the  second  conductor,  and  in  expelling 
him  from  the  car,  over  his  explanations  in  respect  to  the  issue  of  the 
ticket.  These  explanations  it  should  have  accepted  as  true  until  the 
contrary  was  shown.  It  was  certainly  as  much  the  duty  of  the  ap- 
pellant to  correct  the  mistake  which  it  had  made  in  punching  the  ticket 
in  the  first  instance  when  the  opportunity  to  do  so  was  presented  to 
it  through  the  agency  of  the  second  conductor,  as  would  have  been 
its  duty  to  have  rectified  the  same  had  the  attention  of  the  first  con- 
ductor been  called  to  the  mistake  by  appellee  before  he  left  the  Col- 
lege Avenue  car.  Consequently  there  is  no  force  or  merit  in  the  con- 
tention that  he  should  have  examined  the  transfer  ticket  which  he  re- 
ceived before  leaving  the  car,  and  have  presented  it  to  the  conductor 
who  issued  it,  in  order  that  the  mistake  made  by  him  in  punching  the 
ticket  might  be  corrected. 

We  have  given  the  propositions  presented  in  this  appeal  a  patient 
consideration.  All  of  them  lead  up  to  the  single  question,  can  the 
expulsion  of  appellee,  under  the  circumstances  in  this  case,  be  justi- 
fied? As  previously  indicated,  we  are  constrained  to  answer  this 
question  in  the  negative.    Judgment  affirmed.^  ^ 


NORTON  v.  CONSOLIDATED  RY.  CO. 

(Supreme  Court  of  Errors  of  Connecticut.  1906.    79  Conn.  109,  63  Atl.  1087,  118 

Am.  St.  Rep.  132.) 

Hall,  J.^®  *  *  *  This  is  an  action  to  recover  damages  for  the 
alleged  tort  of  the  defendant's  servant  in  attempting  to  forcibly  eject 
the  plaintiff  from  the  car,  and  not  for  the  recovery  of  damages  for  a 
breach  of  the  contract  of  carriage  between  the  plaintiff  and  defendant. 
The  defendant  justifies  the  attempted  expulsion  of  the  plaintiff  upon 
the  ground  that  the  latter  unlawfully  persisted  in  remaining  and  rid- 
ing ?n  the  car,  without  either  paying  his  fare  or  producing  a  transfer 
ticket  purporting  to  entitle  him  to  ride  in  that  car;  and  that  no  un- 
reasonable force  was  used  in  the  attempt  to  remove  him.  As  it  is 
found  that  no  unnecessary  force  was  employed,  the  case  must  turn 
upon  the  question  of  whether,  upon  the  facts  stated,  the  plaintiff  had 
the  right  to  insist  upon  being  carried  upon  the  transfer  ticket  which 

15  Gillett,  J.,  with  whom  Monks,  J.,  concurred,  delivered  a  dissenting  opin- 
ion. 

Ace.  O'Rourke  v.  St.  Ry.  Co.,  103  Tenn.  124,  52  S.  W.  872,  46  L.  R.  A.  614, 
76  Am  St.  Rep.  6.39  (1899) ;  Ga.  R.v.  &  EL  Co.  v.  Baker.  125  Ga.  .562.  54  S.  E. 
639  7  L.  R.  A.  (N.  S.)  103.  114  Am.  St.  Rep.  246  (1906) ;  CleveLaud  City  Ry. 
Co  v.  Conner,  74  Ohio  St.  225,  78  N.  E.  376  (1906),  but  it  seems  passenger 
must  not  be  negligent.  And  see  Lawshe  v.  Tacoma,  etc.,  Co.,  29  Wash.  681, 
70  Pac.  118,  59  L.  R.  A.  350  (1902). 

16  Parts  of  the  opinion  have  been  omitted. 


224  THE  carrier's  undertaking.  (Part  2 

he  presented,  and  to  forcibly  resist  the  conductor's  attempt  to  expel 
him. 

The  plaintiff  contends  that  though  the  transfer  check  may  have  been 
prima  facie  evidence  of  a  different  contract  of  carriage,  yet  the  facts 
show  that  when  he  paid  his  fare  to  the  conductor  upon  the  Savin  Rock 
car,  and  requested  of  him  a  transfer  to  Winchester  Avenue,  the  real 
undertaking  of  the  defendant  was  to  carry  him  by  a  Winchester  Ave- 
nue car,  and  that  having  informed  the  conductor  of  the  Winchester 
Avenue  car  of  these  facts,  and  of  the  mistake  of  the  conductor  of  the 
Savin  Rock  car  in  wrongly  punching  the  transfer,  he  was  entitled  to 
be  carried  upon  the  Winchester  Avenue  car.  In  the  absence  of  any 
statutory  or  other  express  provision  or  regulation  defining  the  contract 
of  carriage  between  electric  street  railway  companies,  and  the  rights 
of  their  passengers  in  cases  like  the  present,  they  must  be  ascertained 
by  considering  all  the  circumstances  indicating  the  intention  and  un- 
derstanding of  both  parties  including  not  only  what  is  required  for  the 
reasonable  safety,  convenience  and  comfort  of  passengers,  but  what  is 
reasonably  necessary  to  enable  the  company  to  properly  perform  the 
functions  for  which  it  was  created  and  what  the  known  and  reasonable 
rules  of  the  company  are  with  reference  to  which  the  parties  are  pre- 
sumed to  have  contracted. 

There  are  certain  facts  and  established  rules  connected  with  the  op- 
eration of  electric  street  railways,  which  in  these  days  are  familiar 
to  every  person  of  ordinary  intelligence  who  has  occasion  to  ride  on 
them,  and  which  are  to  be  regarded  in  determining  what  the  real 
contract  of  carriage  is  in  a  case  like  the  present  one.  Among  them 
are  these :  That  the  mere  payment  of  the  ordinary  fare  in  a  street  car 
does  not,  of  itself,  as  upon  a  steam  railroad,  indicate  the  destina- 
tion of  the  passenger,  nor  suggest  that  he  desires  transportation  by 
another  line  and  upon  another  car;  that  a  passenger  upon  one  line 
desiring  to  be  transferred  to  another,  operated  by  the  same  compa- 
ny, must  pay  his  cash  fare  on  the  first  car;  that  upon  such  payment 
he  will  be  carried,  in  that  car,  to  the  point  of  transfer  to  the  sec- 
ond line ;  that  before  leaving  the  first  car  he  must  obtain  from  the  con- 
ductor of  it  a  ticket  indicating  upon  its  face  his  right  to  take  passage 
upon  a  car  of  the  second  line ;  that  as  to  the  conductor  upon  the  sec- 
ond car,  the  person  receiving  such  transfer  ticket  enters  that  car  like 
all  other  passengers  taking  the  car  at  that  point,  and  will  not  be  per- 
mitted to  ride  unless  he  either  pays  his  fare  or  presents  a  proper 
transfer ;  that  it  is  the  office  of  the  conductor  of  the  second  car  to  de- 
termine the  right  of  the  passenger  to  ride  upon  that  car,  and  that  upon 
the  presentation  of  a  transfer  ticket,  the  ticket  itself  is  the  only  evi- 
dence of  such  right  which  the  conductor  can  properly  accept. 

In  our  opinion,  the  facts  fail  to  show  that  when,  on  the  Savin  Rock 
car,  the  plaintiff  paid  his  fare  and  asked  for  a  transfer  to  Winchester 
Avenue,  the  defendant  undertook  absolutely  to  carry  him  upon  a  Win- 
chester Avenue  car,  even  if  he  failed  to  either  pay  his  fare,  or  present 


Ch,  6)  TICKETS.  •  225 

a  proper  transfer  ticket  on  that  car.  They  show  that  the  real  con- 
tract of  the  defendant  was  to  carry  the  plaintiff,  upon  the  first  car, 
to  the  proper  point  of  transfer  to  the  second  line;  to  furnish  him  a 
proper  transfer  ticket  to  entitle  him  to  a  passage  on  a  car  of  the  sec- 
ond line;  and  to  carry  him  upon  that  line,  upon  the  presentment  of 
such  transfer  or  the  payment  of  his  fare  to  the  conductor  of  the  sec- 
ond car.  Through  the  carelessness  of  its  servant,  in  not  giving  the 
plaintiff  the  transfer  ticket  which  he  asked  for,  the  defendant  failed  to 
perform  its  contract.  For  such  breach  of  contract  the  plaintiff  would 
have  been  entitled  to  compensation  for  the  loss  or  injury,  had  there 
been  any,  which  necessarily  followed  from  the  defendant's  failure  to 
furnish  him  a  proper  transfer  ticket.  His  remedy  for  such  breach  of 
contract  was  not  to  refuse  to  pay  his  fare,  and  to  forcibly  resist  being 
expelled  from  the  car.  As  the  transfer  ticket  which  he  presented  did 
not  even  purport  to  authorize  him  to  ride  on  a  Winchester  Avenue  car, 
the  conductor  of  that  car,  notwithstanding  the  plaintiff's  explanation 
of  the  mistake,  was  justified  in  refusing  to  accept  it,  and  in  requiring 
him  to  pay  his  fare  or  leave  the  car,  and  after  the  demands  made  by 
the  conductor,  it  became  the  plaintiff's  duty  to  either  pay  his  fare  or 
peaceably  leave  the  car  [citing  authorities]. 

A  rule  requiring  the  expulsion  from  a  car  of  a  passenger  who  re- 
fuses to  either  pay  his  fare  or  produce  a  ticket  showing  his  right  to 
ride  on  such  car  is  a  reasonable  one  (Downs  v.  New  York  &  N.  H. 
R.  Co.,  36  Conn.  287,  291,  4  Am.  Rep.  77 ;  Havens  v.  Hartford  &  N. 
H.  R.  Co.,  28  Conn.  69,  88 ;  Townsend  v.  New  York  C.  &  H.  R.  R. 
Co.,  56  N.  Y.  295,  15  Am.  Rep.  419 ;  Shelton  v.  Lake  Shore  &  M. 
S.  R.  Co.,  29  Ohio  St.  214),  and  one  which,  from  the  fact  that  it  is 
so  general  with  carriers,  as  well  as  from  the  facts  found  in  this  case, 
was  evidently  well  known  to  the  plaintiff.  In  ascertaining  whether 
the  plaintiff  was  entitled  to  ride  on  the  Winchester  Avenue  car,  it  w.as 
not  the  duty  of  the  conductor  of  that  car  to  accept  the  statement  made 
to  him  by  the  plaintiff  that  the  mistake  in  his  transfer  was  the  fault 
of  the  conductor  of  the  Savin  Rock  car.  Townsend  v.  New  York  C. 
&  H.  R.  R.  Co.,  56  N.  Y.  295,  15  Am.  Rep.  419 ;  Downs  v.  Hartford 
&  N.  H.  R.  Co.,  36  Conn.  287,  291,  4  Am.  Rep.  77.  As  between  the 
second  conductor  and  the  plaintiff",  the  transfer  ticket  was  conclusive 
as  to  the  latter's  right  to  be  ^carried  as  a  transferred  passenger  upon 
the  Winchester  Avenue  car.  "As  between  the  passenger  .and  the  con- 
ductor of  the  car  in  which  he  is,  the  terms  of  the  ticket  or  check  are 
conclusive,  and  the  right  to  ride  upon  it  on  that  train  is,  for  the  time 
being,  to  be  determined  accordingly."  Baldwin  on  American  Railroad 
Law,  p.  292;  Mosher  v.  St.  Louis,  L  M.  &  S.  Ry.  Co.,  127  U.  S.  390, 
8  Sup.  Ct.  1324.  32  L.  Ed.  249 ;  Pouilin  v.  Canadian  Pac.  Ry.  Co.,  3  C. 
C.  A.  23,  52  Fed.  197,  17  L.  R.  A.  800,  and  cases  above  cited. 

There  is  a  conflict  of  authorities  in  other  jurisdictions  upon  the 
questions  of  the  conclusive  character  of  such  a  ticket,  as  between  the 
Gkeen  Cabk. — 15 


226  THE  carrier's  lndertaking.  (Part  2 

passenger  offering  it  and  the  conductor  to  whom  it  is  presented ;  of  the 
terms  of  the  contract  of  carriage ;  and  of  the  right  of  the  passenger 
to  forcibly  resist  expulsion  in  cases  like  the  present  one.  In  the  case 
of  Indianapolis  Street  Ry.  Co.  v.  Wilson,  IGl  Ind.  153,  66  N.  E.  950, 

67  N.  E.  093,  100  Am.  St.  Rep.  261,  decided  in  1903,  in  which  the 
claims  of  the  present  plaintiff  are  sustained  by  the  majority  opinion, 
these  questions  are  very  ably  discussed  and  the  authorities  fully  cited 
upon  both  sides.  In  our  view  the  dissenting  opinion  of  Judge  Gillett, 
in  which  Judge  Monks  concurred,  is  sustained  by  the  better  reasons 
and  by  the  greater  weight  of  authority. 

Our  conclusion  is  that  the  plaintiff,  having  by  his  own  wrongful 
conduct  invited  the  use  of  force,  cannot  now  complain  of  the  use  by 
the  defendant  of  reasonable  force  in  the  attempt  to  remove  him  from 
the  car.  The  trial  court  erred  in  holding  that  the  plaintiff  was  en- 
titled to  substantial  damages. 

There  is  error,  and  the  case  is  remanded  for  the  assessment  of  nom- 
inal damages.     In  this  opinion  the  other  Judges  concurred. ^^ 

17  In  Bradshaw  v.  So.  Boston  Co.,  1?,.5  Mass.  407.  46  Am.  Rep.  481  (18.S3).  and 
Keen  v.  Detroit  El.  Ry.,  123  Mich.  247,  81  N.  W.  1084.  (1900),  actions  of  tort 
for  ejecting  a  passenger  who  presented  a  wrong  transfer  clieck  given  liim  by 
the  carrier's  mistake,  the  carrier  had  judgment.  And  see  20  Harv.  Law  Rev. 
137. 

The  following  cases  treat  a  ticket  or  the  sale  of  a  ticket  as  ordinarily  im- 
porting only  an  undertaking  to  accept  such  ticket  in  payment  of  fare  accord- 
ing to  the  import  of  the  ticket  itself,  and  hold  that  it  imposes  no  obligation 
to  carry  the  passenger  on  a  journey  for  which  on  its  face  it  is  insufficient. 
Pouilin  V.  Canadian  Pac.  Ry.  Co.,  52  Fed.  197.  3  C.  C.  A.  23,  17  L.  R.  A.  800 
(1892);  Spink  v.  Louisville,  etc.,  R.  Co.  (Ky.)  .^)2  S.  W.  1007  (1899):  Brown  v. 
Rapid  Ry.  Co.,  134  Mich.  591.  90  N.  W.  925  (1903);  Western  Md.  Rv.  Co.  v. 
Schaun,  97  Md.  563,  55  Atl.  701  (1903).     See.  also,  C.  B.  &  Q.  R.  Co.  v.  Gritiin, 

68  111.  499  (1873) ;  Peabody  v.  Oregon  Co..  21  Or.  121,  26  Pac.  10.^3.  12  L.  R.  A. 
823  (1891) ;  Chicago,  etc.,  Co.  v.  Stratton,  111  111.  App.  142  (1903) ;  Chase  v. 
Railway  Co.,  70  Kan.  546,  79  Pac.  153  (1905) ;  1  Harv.  Law  Rev,  17 ;  9  Harv. 
Daw  Rev.  3.53;   14  Harv.  Law  Rev.  70. 

On  this  theory,  a  passenger  without  a  ticket  is  not  entitled  to  be  carried, 
though  his  not  having  a  ticket  is  due  to  the  carriei''s  default.  Townsend  v. 
N.  Y.  C.  R,  Co.,  56  N.  Y.  295,  15  Am.  Rep.  419  (1874),  ticket  taken  up  with- 
out giving  conductor's  check ;  Shelton  v.  Lake  Shore  Ry.  Co..  29  Ohio  St. 
214  (1876),  commutation  ticket  taken  up  before  completely  used ;  McKay  v. 
Ohio  R.  Co.,  34  W.  Va.  65,  11  S.  E.  737,  9  L.  R.  A.  132,  26  Am.  St.  Rep.  913 
(1890),  conductor  took  up  return  coupon  on  outward  trip,  outward  coupon 
not  good  for  return  trip ;  Mahoney  v.  Detroit  Co.,  93  Mich.  612,  53  N.  W.  793, 
18  L.  R.  A.  335,  32  Am.  St.  Rep.  528  (1892)?  passenger  directed  to  change  to 
another  street  car  without  giving  him  transfer  check;  Van  Dusan  v.  Gd.  Tk. 
Ry.  Co.,  97  Mich.  439,  56  N.  W.  848,  37  Am.  St.  Rep.  354  (189.3),  where  conductor 
takes  up  outward  coupon  of  round-trip  ticket,  without  giving  check  for  rest 
of  outward  passage,  passenger  not  entitled  to  continue  outward  trip  on  re- 
turn coupon. 

But  it  has  been  held  that  a  passenger  is  entitled  to  ride  if  the  carrier  knows 
that  he  is  entitled  to  a  ticket,  which  through  the  carrier's  default  he  has  not 
been  able  to  get.  St.  Louis,  etc.,  Co.  v.  Dalby,  19  111.  353  (1857) ;  East  Tenn.  Ry. 
Co.  V.  King,  88  Ga.  443,  14  S.  E.  708  (1892),  conductor  ejected,  though  convinced 
that  former  conductor  had  collected  ticket  without  giving  check ;  Cherry  v. 
Kansas  City  R.  Co.,  52  Mo.  App.  499  (1893),  ejectment  by  conductor  who  had 
previously  withheld  stopover  check ;  Sc-ofield  v.  Pa.  Co.,  112  Fed.  855,  50  C. 
C.  A.  553,  56  L.  R.  A.  224  (1902),  stopover  check  refused.     And  see  Cinn.,  etc., 


Ch.  6)  TICKETS.  227 

Ry.  Co.  V.  Harris,  115  Tenn.  501,  91  S.  W.  211,  5  L.  R.  A.  (N.  S.)  770  (1005), 
railroad  liable  for  conductor's  insults  to  passenger  holding  order  for  ticket 
which  he  had  been  denied  opportunitj'  to  procure. 

The  following  cases  treat  the  purchase  of  a  ticket  as  the  purchase  of  a  right 
to  be  carried  on  condition  that  the  passenger  present  the  ticket  issued  in 
token  of  his  right,  and  hold  that  the  passenger  on  presenting  the  ticket,  and, 
if  on  its  face  it  is  insufficient,  on  giving  such  evidence  of  the  facts  as  is 
available,  though  it  is  only  his  own  statement,  is  entitled  to  be  carried  by 
virtue  of  the  right  he  has  purchased:  St.  Louis,  etc.,  R.  Co.  v.  Mackie,  71 
Tex.  491,  9  S.  W.  451,  1  L.  R.  A.  GG7.  10  Am.  St.  Rep.  706  (1888)  ;  Alabama, 
etc.,  R.  Co.  V.  Holmes,  75  Miss.  371,  23  South.  187  (1898) ;  and  cases  cited  in 
note,  page  223.  See,  also.  Yorton  v.  Milwaukee,  etc.,  Ry.  Co.,  62  Wis.  367, 
21  N.  W.  516  (1885)  :  Ga.  Rv.  Co.  v.  Olds,  77  Ga.  673  (1886) ;  111.  Cent.  R.  Co. 
v.  Jackson,  117  Ky.  900,  79  S.  W.  1187  (1904). 

The  same  result  Is  reached  -where  the  passenger  has  been  deprived  of  his 
ticket  by  the  carrier's  act  or  default.  Kansas  City  R.  Co.  v.  Riley,  68  Miss. 
765,  9  South.  443.  13  L.  R.  A.  38.  24  Am.  St.  Rep.  309  (1891),  outward  coupon 
valid  for  return  passage  where  conductor  mistakenly  took  up  return  coupon 
on  outward  trip.  And  see  Pittsburg  R.  Co.  v.  Hennigh,  39  Ind.  509  (1872), 
first  conductor  took  up  ticket,  and  second  conductor  on  same  train  ejected  on 
refusal  to  pay  fare. 

But  one  who,  by  not  explaining  or  by  explaining  wrongly  the  mistake  in 
his  ticket,  leads  the  conductor  to  believe  it  invalid  cannot  have  damages  for 
being  compelled  to  leave  the  train.  Petrie  v.  Pa.  Co.,  42  N.  J.  Law,  449  (1880) ; 
^Yhite  V.  Grand  Rapids  R.  Co.,  107  Mich.  681,  65  N.  W.  521  (1895) ;  Alabama, 
etc.,  Co.  V.  Drummond,  73  Miss.  813,  20  South.  7  (1896). 

If  a  passenger  is  entitled  to  be  carried  without  further  payment  of  fare, 
it  is  a  breach  of  duty  to  require  him  to  pay  fare  or  leave  the  train,  and  if  he 
refuses  to  pay  he  may  have  his  damages  for  being  compelled  to  leave.  "If 
he  was  rightfully  on  the  train  as  a  passenger,  he  had  the  right  to  refuse  to  be 
ejected  from  it,  and  to  make  a  sufficient  resistance  to  being  put  off  to  denote 
that  he  was  being  removed  by  compulsion  and  against  his  will ;  and  the  fact 
that,  under  such  circumstances,  he  was  put  off  the  train,  was  of  itself  a  good 
cause  of  action  against  the  company,  irrespective  of  any  physical  injury  he 
mav  have  received  at  that  time,  or  which  was  caused  thereby."  Lamar.  J., 
in  Erie  R.  Co.  v.  Winter,  143  U.  S.  60,  12  Sup.  Ct.  356,  36  L.  Ed.  71  (1S92). 
And  see  Smith  v.  Leo.  92  Hun,  242,  36  N.  Y.  Supp.  949  (1895).  theater  ticket. 
The  fact  that  by  yielding  to  the  unwarranted  demand  he  would  have  avoided 
expulsion  does  not  limit  his  damages  to  the  amount  of  fare  demanded.  Pa.  R. 
Co.  V.  Connell,  112  111.  295,  54  Am.  Rep.  238  (1884) ;  Lexington,  etc.,  Ry.  Co. 
V.  Lyons,  104  Ky.  23,  46  S.  W.  209  (1898) ;  Yorton  v.  Milwaukee,  etc.,  R. 
Co  62  Wis  367,"  21  N.  W.  516  (188.5);  St.  Louis,  etc..  Ry.  Co.  v.  INIackie.  71 
Tex.  491,  9  S.  W.  451,  1  L.  R.  A.  667.  10  Am.  St.  Rep.  766  (1888).  But  it  does 
not  follow,  even  in  the  case  of  a  common  carrier,  that  such  a  passenger  has  a 
right  to  remain  which  survives  his  being  ordered  to  leave,  if  the  carrier  has 
a  regulation  that  persons  without  proper  tickets  must  leave  at  request  or  pay 
fare.  "If  after  this  notice  he  waits  for  the  application  of  force  to  remove 
him,  he  does  so  in  his  own  wrong.  He  invites  the  use  of  the  force  necessary 
to  remove  him,  and  if  no  more  is  applied  than  is  necessary  to  effect  the  object, 
he  can  neither  recover  against  the  conductor  or  company  therefor.  This  is 
the  rule  deducible  from  the  analogies  of  the  law.  No  one  has  a  right  to  re- 
sort to  force  to  compel  the  performance  of  a  contract  made  with  him  by  an- 
other" Grover,  J.,  in  Townsend  v.  N.  Y.  C.  R.  Co..  .56  N.  Y.  295.  15  Am.  Rep. 
419  (1874)  And  see  Wood  v.  Leadbitter,  13  ^I.  &  W.  ,S3S  (1845).  race  track 
ticket ;   McCrea  v.  Marsh,  12  Gray  (Mass.)  211,  71  Am.  Dec.  745  (1858),  theater 

ticket. 

Even  if  the  passenger  has  a  right  to  remain  in  the  train  so  that  forcibly 
ejecting  him  is  a  tort,  it  does  not  follow  that  he  is  entitled  to  defend  his  right 
by  resisting  a  conductor  acting  in  good  faith,  and  recover  damages  for  injuries 
incurred  in  resisting.  "A  train  crowded  with  passengers,  often  women  and 
children,  is  no  place  for  a  quarrel  or  a  fight  behveen  a  conductor  and  a  pas- 
senger, and  it  would  be  unwise,  and  dangerous  to  the  traveling  public,  to 
adopt  any  rule  which  might  encourage  a  resort  to  violence  on  a  train  of  cars. 
The  conductor  must  have  the  supervision  and  control  of  his  train,   and  a 


228  THE   CAURIEU'S   UNDERTAKING.  (Part  2 

demand  on  his  part  for  fare  should  be  obeyed,  or  the  passenger  should  in  a 
peaceable  manner  leave  the  train,  and  seek  redress  in  the  courts,  where  he 
will  find  a  complete  remetlv  for  everj'  indijinity  offered,  and  for  all  damages 
sustained."  Craig,  J.,  in  Pa.  K.  Co.  v.  Conuell.  112  111.  295,  54  Am.  Rep.  238 
(1884).  Ace.  Kiley  v.  Chicago  City  Ry.  Co.,  18.9  111.  384,  59  N.  E.  794,  52  L. 
R.  A.  626,  82  Am.  St.  Rep.  460  (1901).  And  see  Mnnnier  v.  N.  Y.  C.  R.  Co. 
(1903)  post,  p.  556.  Contra:  Ellsworth  v.  C.  B.  &  Q.  R.  Co.,  95  Iowa,  98,  63 
X.  W.  584,  29  L.  R.  A.  173  (1895).  And  see  Pine  v.  St.  Paul  City  Ry.  Co.,  50 
Minn.  144,  52  N.  W.  392,  16  L.  R.  A.  347  (1892). 

D.^AfAaED  AND  ALTERED  TICKETS. — In  the  following  cases  tickets  which  with- 
out the  holder's  fault  were  in  damaged  or  altereil  condition,  but  still  capable 
of  being  recognized,  were  held  good:  Railroad  Co.  v.  Conley,  6  Ind.  App.  9, 
32  N.  E.  96  (1892),  discolored ;  Wightman  v.  Chicago,  etc.,  R.  Co.,  73  Wis.  169. 
40  N.  W.  689,  2  L.  R.  A.  185,  9  Am.  St.  Rep.  778  (1888).  coupon  "not  good  if 
detached"  accidentally  separated;  Young  v.  Central  Ry.  Co.,  120  Ga.  25,  47 
S.  E.  556,  65  L.  R.  A.  436,  102  Am.  St.  Rep.  68  (1904),  ticket  "not  good  if  mu- 
tilated" accidentally  torn  in  two ;  Rouser  v.  No.  Park  St.  Ry.  Co.,  97  Mich. 
565.  56  N.  W.  937  (1893),  name  of  destination  torn  off  by  previous  conductor. 

Compare  Louisville,  etc.,  R.  Co.  v.  Harris,  9  Lea  (Tenn.)  ISO,  42  Am.  Rep.  668 
(1882),  coupons  "void  if  detached  by  any  one  but  the  conductor"  detached  by 
passenger  in  conductor's  presence;  Norfolk  <&  W.  R.  Co.  v.  Wysor,  82  Va.  250 
(1886),  coupons  "void  if  detached"  torn  from  book  by  passenger  in  conductor's 
presence;  B.  &  M.  R.  Co.  v.  Chipman,  146  Mass.  107,  14  N.  E.  940,  4  Am.  St. 
Rep.  293  (1888).  coupon  "not  good  if  detached"  presented  alone ;  Henly  v. 
Delaware,  etc.,  R.  Co..  28  Mire.  Rep.  499,  59  N.  Y.  Supp.  857  (1899),  commuta- 
tion ticket  cut  down  by  passenger  to  fit  his  card  case,  so  that  ticket  puncher 
punched  fares  inaccurately. 

Agreements  Concerning  Validation.— An  agreement  that  a  round  trip 
ticket  shall  not  be  good  for  return  passage  unless  stamped  at  destination  by  a 
designated  person  is  valid.  Boylan  v.  Hot  Springs  R.  Co.,  132  U.  S.  146,  10 
Sup.  Ct.  50,  33  L.  Ed.  290  (1880).  Even  though  such  person  is  unable  or  un- 
willing to  act.  Mosher  v.  Railroad  Co..  127  U.  S.  390,  8  Sup.  Ct.  1324,  32  L. 
Ed.  249  (1888) ;  Western  Md.  R.  Co.  v.  Stocksdale,  83  Md.  245,  34  Atl.  880 
(1896).  But  if  a  validating  agent,  who  unwarrantably  refuses  to  act  is  the  car- 
rier's employe,  it  has  been  held  that  the  carrier  cannot  take  advantage  of  the 
nonfulfillment  of  the  condition.  Head  v.  Ga.  Pac.  Ry.  Co..  79  Ga.  .358.  7  S. 
E.  217,  11  Am.  St.  Rep.  434  (1887).  agent  refused  to  sign ;  No.  Pac.  R.  Co.  v. 
Pauson.  70  Fed.  585,  17  C.  C.  A.  287,  .30  L.  R.  A.  730  (1895),  ticket  unstamped 
by  mistake;  So.  Ry.  v.  Wood.  114  Ga.  140,  39  S.  E.  894,  55  L.  R.  A.  .536  (1901). 
no  agent  on  hand ;  Pittsburgh,  etc.,  Ry.  Co.  v.  Coll,  37  Ind.  App.  232,  76  N.  E. 
816  (1906),  passenger  not  allowed  to  furnish  proof  of  identity.  Contra:  Mc- 
Ghee  v.  Reynolds,  117  Ala.  413,  23  South.  68  (1897),  the  only  wrong  is  the  re- 
fusal to  validate. 


Ch.  7)  SEVERAL  PERSONS    CONCERNED  IN  CARRIAGE.  229 


CHAPTER  VII 

LIABILITY  WHERE  SEVERAL  PERSONS  ARE  CON- 
CERNED IN  CARRIAGE 


SECTION  1.— WITH  WHOM  IS  THE  CONTRACT  OF 
CARRIAGE 


CITIZENS'  BANK  v.  NANTUCKET  STEAMBOAT  CO. 
(Circuit  Court,  D.  Massachusetts,  1841.    2  Stoi-y,  16,  Fed.  Cas.  No.  2,730.) 

Libel  in  admiralty.     *     *     * 

Story,  J.i  *  *  *  The  suit  is  in  substance  brought  to  recover  from 
the  steamboat  company  a  sum  of  money,  in  bank  bills  and  accounts,  be- 
longing to  the  Citizens'  Bank,  which  was  intrusted  by  the  cashier  of 
the  bank  to  the  master  of  the  steamboat,  to  be  carried  in  the  steamboat 
from  the  island  of  Nantucket  to  the  port  of  New  Bedford,  across  the 
intermediate  sea,  which  money  has  been  lost,  and  never  duly  delivered 
by  the  master.     *     *     * 

The  ground  of  the  defense  of  the  company  is  that,  in  point  of  fact, 
although  the  transportation  of  money  and  bank  bills  by  the  master  was 
well  known  to  them,  yet  it  constituted  no  part  of  their  own  business 
or  employment;  that  they  never  were,  in  fact,  common  carriers  of 
money  or  bank  bills ;  that  they  never  held  themselves  out  to  the  public 
as  such,  and  never  received  any  compensation  therefor;  that  the  mas- 
ter, in  receiving  and  transporting  money  and  bank  bills,  acted  as  the 
mere  private  agent  of  the  particular  parties,  who  intrusted  the  same  to 
him,  and  not  as  the  agent  of  the  company  or  by  their  authority ;  that, 
in  truth,  he  acted  as  a  mere  gratuitous  bailee  or  mandatory  on  all  such 
occasions ;  and  even  if  he  stipulated  for,  or  received,  any  hire  or  com- 
pensation for  such  services,  he  did  so,  not  as  the  agent  of  or  on  ac- 
count of  the  company,  but  on  his  own  private  account,  as  a  matter  of 
agency  for  the  particular  bailors  or  mandators.  Now,  certainly,  if 
these  matters  are  substantially  made  out  by  the  evidence,  they  consti- 
tute a  complete  defense  against  the  present  suit.-     *     *     * 

1  The  statement  of  faets  and  parts  of  the  opinion  are  omitted. 

2  The  decree  of  the  District  Court  dismissing  the  libel  was  affirmed.  Com- 
pare Cantling  v.  Hannibal,  etc.,  R.  Co.,  54  Mo.  3S.'>,  14  Am.  Rep.  476  (1873).  rail- 
road held  to  be  bailee  of  dog  in  charge  of  baggage  master,  who.  as  customary,, 
kept  as  a  perquisite  the  price  charged. 


230  THE  carrier's  undertaking.  (Part  2 

CUTLER  V.  WINSOR. 
(Supreme  Judicial  Court  of  Massachusetts,  1828.    6  Pick.  335,  17  Am.  Dec.  ^o.) 

Assumpsit  against  the  defendant  as  owner  of  the  schooner  Alex- 
ander, for  certain  goods  laden  on  board  of  her  by  the  plaintiffs  at 
Boston,  to  be  carried  to  Alexandria,  she  being  then  commanded  by 
Jesse  Snow. 

The  defense  rested  upon  the  ground  that  Snow  was  charterer  of 
the  vessel,  and  so  constructive  owner  pro  hac  vice,  when  the  goods 
were  shipped;  and  to  maintain  it  the  defendant  produced  the  depo- 
sition of  Snow,  originally  taken  on  behalf  of  the  plaintiffs,  and  to 
which  was  annexed  the  written  agreement  made  between  Snow  and 
the  defendant  concerning  the  use  of  the  vessel. 

The  material  part  of  this  agreement  is  as  follows:  "The  said 
Capt.  Snow,  having  agreed  to  take  the  said  schooner  Alexander  for 
the  purpose  of  getting  employ  in  the  freighting  business,  doth  by 
these  presents  promise  and  oblige  himself  to  victual  and  man  the 
said  schooner,  and  pay  one-half  of  all  port  charges  and  pilotage,  etc. 
And  I,  the  said  Winsor,  do  promise,  on  my  part,  to  put  said  schooner 
in  sufficient  order  for  such  business,  with  sails,  rigging,  and  tackling. 
likewise  to  pay  one-half  of  the  port  charges,  pilotage,  etc.,  together 
with  eight  dollars  per  month  for  one  man's  wages;  and  it  is  under- 
stood that  all  money  or  moneys  so  stocked  in  said  schooner,  whether 
for  freight  or  passage  or  whatever,  shall  be  equally  divided  between 
the  said  Capt.  Snow  and  Winsor,  each  party  accounting  for  the  above." 
*  *  *  A  verdict  was  taken  for  the  defendant,  subject  to  the  opin- 
ion of  the  whole  court. 

Parker,  C.  J.^  In  the  case  of  Reynolds  v.  Toppan,  15  Mass.  370, 
8  Am.  Dec.  110,  it  was  determined  that  the  owner  of  a  vessel  under 
charter,  the  hirer  having  the  whole  control  of  the  vessel  for  the  time, 
to  victual  and  man  her  and  pay  over  a  portion  of  the  net  proceeds 
to  the  owner  for  the  use  of  the  vessel,  was  not  liable  to  the  shippers 
of  goods  on  board  the  vessel,  w^hich  had  been  embezzled  or  otherwise 
not  accounted  for  by  the  master.  In  that  case  the  English  authorities 
cited  on  the  present  occasion  were  duly  considered  by  the  court  and 
therefore  will  not  be  commented  upon ;  and  in  the  case  of  Taggard  et 
al.  V.  Loring,  16  Mass.  336,  8  Am.  Dec.  140,  the  same  principle  is  rec- 
ognized, and  is  applied  to  a  contract  of  hire  of  the  vessel  which  existed 
only  in  parol.  So  that  the  inquiry  in  the  present  case  can  be  only  wheth- 
er there  exist  any  circumstances  which  distinguish  it  from  those  which 
have  been  thus  decided. 

And  first  it  is  insisted  that  in  the  cases  decided  the  letting  the  vessel 
w^as  for  a  certain  determinate  period,  in  one  case  for  six  months,  and 

3  The  statement  of  facts  has  been  abbreviated. 


Ch.  7)       SEVERAL  PERSONS  CONCERNED  IN  CARRIAGE.  231 

in  the  other  for  the  season ;  whereas  in  the  present  case  there  is  no 
provision  for  the  duration  or  the  termination  of  the  contract. 

It  is  not  perceived  that  any  difference  in  regard  to  the  HabiHty  of 
the  parties  can  result  from  this  circumstance,  for  although  the  con- 
tract was  determinable  at  the  will  of  the  owner  of  the  vessel,  yet, 
as  in  other  contracts  of  a  similar  nature,  this  right  is  subject  to  the 
qualification  that  it  could  not  be  rescinded  while  the  vessel  was  actu- 
ally employed  in  business  pursuant  to  the  contract;  so  that  it  was 
an  absolute  and  indefeasible  hiring  of  the  vessel  for  every  voyage 
she  should  have  undertaken  until  notice  was  given  by  the  owner  of 
his  intention  to  discontinue  it. 

The  principle  of  ownership  pro  hac  vice  by  the  hirer  would  apply 
to  every  voyage  undertaken  by  him  before  he  should  receive  notice 
from  the  owner  that  he  chose  to  terminate  the  contract.  For  this 
we  cite  no  authority,  for  no  case  like  the  present  has  been  found; 
but  it  results  from  the  nature  of  the  contract  and  the  rights  of  the 
party  under  it,  and  is  analogous  to  the  case  of  leases  at  will  of  real 
estate,  which  cannot  be  terminated  but  by  mutual  consent,  unless  the 
lessor  gives  reasonable  notice  to  quit. 

It  is  also  thought  that  the  clause  in  the  agreement,  wdiich  provides 
that  the  defendant,  the  owner,  shall  be  accountable  for  the  wages  of 
one  man  at  $8  per  month,  constitutes  a  substantial  difference  between 
this  and  the  cases  decided ;  but,  on  reflection,  we  consider  this  only 
as  a  means  of  ascertaining  the  charges  upon  the  earnings  before  a 
division  shall  be  made  between  the  charterer  and  the  owner.  It  is 
no  more  than  if  the  parties  had  agreed  that  the  earnings  should  be 
divided,  except  that  $8  per  month  should  be  deducted  from  the  de- 
fendant's share. 

As  to  the  question  of  copartnership  between  the  defendant  and 
Snow  in  the  employment  and  earnings  of  the  vessel,  we  think  it  can- 
not be  predicated  on  the  facts  appearing  in  this  case,  any  more  than 
in  all  the  cases  in  which  the  charter  of  the  vessel  was  agreed  to  be 
paid  by  a  portion  of  the  earnings. 

Judgment  according  to  verdict.* 


4  Instances  of  charters  of  demise  may  he  found  in  Colvin  v.  Newlierry,  1  CI. 
&  F.  283  (1S.32) ;  The  Daniel  Bvu-ns  (D.  C.)  52  Feil.  l.'iO  (1892);  The  Barnstable. 
181  U.  S.  40i.  468,  21  Sup.  Ct.  G84,  45  L.  Ed.  954  (1901)  ;  Auten  v.  Bennett,  183 
N  Y  496  76  N  E.  609  (1900).  See,  also,  Pitkin  v.  Brainard,  5  Conn.  451,  13 
Am.  bee.  79  (182.5) ;  The  National  City,  117  Fed.  822,  .55  C.  C.  A.  44  (1902).  In 
Drinkwater  v.  The  Spartan,  1  Ware,  145,  Fed.  Cas.  No.  4,085  (1828),  Ware,  J., 
said:  "^There  are,  however,  two  kinds  of  contracts  passing  under  the  general 
name  of  "charter  party."  differing  from  each  other  very  widely  in  their  nature, 
their  provisions,  and  in  their  legal  effects.  In  one,  the  owner  lets  the  use  of 
his  ship  to  freight,  he  himself  retaining  the  legal  possession,  and  being  liable 
to  all  the  responsibilities  of  owner.  The  master  is  his  agent,  and  the  mariners 
are  in  his  employment,  and  he  is  answerable  for  their  conduct.  The  charterer 
obtains  no  right  of  control  over  the  vessel,  but  the  owner  is  in  fact  and  in  con- 
templation of  law  the  carrier  of  whatever  goods  are  conveyed  in  his  ship.    In 


232  THE  carrier's  undertaking.  (Part  2 

MUSCHA-MP  V.  LANCASTER  &  P.  J.  RY.  CO. 
(Court  of  Exchequer,  1841.    8  Mees.  &  W.  421.) 

Case  [for  the  loss  of  a  box  alleged  to  have  been  delivered  to  and 
received  by  the  defendant  as  a  common  carrier  to  be  conveyed  for 
hire  to  the  Wheatsheaf,  Bartlow].     *     *     * 

At  the  trial  before  Rolfe,  B.,  at  the  last  assizes  at  Liverpool,  the 
following  facts  appeared  in  evidence:  The  defendants  are  the  pro- 
prietors of  the  Lancaster  &  Preston  Junction  Railway,  and  carry  on 
business  on  their  line  between  Lancaster  and  Preston,  as  common 
carriers.  At  Preston  the  line  joins  the  North  Union  Railway,  which, 
afterwards  unites  with  the  Liverpool  &  Manchester  Railway  at  Park- 
side,  and  that  with  the  Grand  Junction  Railway.  The  plaintiff,  a 
stone  mason  living  at  Lancaster,  had  gone  into  Derbyshire  in  search 
of  work,  leaving  his  box  of  tools  to  be  sent  after  him.  His  mother 
accordingly  took  the  box  to  the  railway  station  at  Lancaster,  directed 
to  the  plaintiff,  "to  be  left  at  the  Wheatsheaf,  Bartlow,  near  Bake- 
well,  Derbyshire"  (a  place  about  eight  miles  wide  of  the  Birming- 
ham &  Derby  Junction  Railway),  and  requested  the  clerk  at  the  sta- 
tion to  book  it.  In  answer  to  her  inquiries,  he  told  her  that  the  box 
would  go  in  two  or  three  days ;  and  on  her  asking  whether  it  would 
go  sooner  if  the  carriage  was  paid  in  advance,  he  inquired  whether 
any  one  was  going  with  it ;  on  her  answering  in  the  negative,  and  that 
the  person  for  whom  it  was  intended  w^ould  be  ready  at  the  other  end 
to  receive  it,  he  said  the  carriage  had  better  be  paid  for  by  that  person 
on  the  receipt  of  it.  It  appeared  that  the  box  arrived  safely  at  Pres- 
ton, but  was  lost  after  it  was  despatched  from  thence  by  the  North 
Union  Railway.  Upon  these  facts  the  learned  judge  stated  to  the 
jury,  in  summing  up,  that  where  a  common  carrier  takes  into  his 
care  a  parcel  directed  to  a  particular  place,  and  does  not  by  positive 
agreement  limit  his  responsibility  to  a  part  only  of  the  distance,  that 
is  prima  facie  evidence  of  an  undertaking  on  his  part  to  carry  the 
parcel  to  the  place  to  which  it  is  directed ;  and  that  the  same  rule  ap- 
plied, although  that  place  were  beyond  the  limits  within  which  he  in 
general  professed  to  carry  on  his  trade  of  a  carrier.  The  jury  found  a 
verdict  for  the  plaintiff,  damages  £16  Is. 

the  other,  the  vessel  is  herself  let  to  hire,  and  the  charterer  takes  her  into  his 
own  possession.    It  is  a  contract  for  a  lease  of  the  vessel." 

Instances  of  charters  under  which  the  shipowner  retained  possession  may 
be  found  in  The  Aberfovle.  Abb.  Adm.  242.  Fed.  Cas.  No.  IG  (1848):  Adams 
V.  Homeyer,  4.5  Mo.  54.5.  100  Am.  Dec.  391  (1870) ;  The  Craigallion  (D.  C.)  20 
Fed.  747  (1884) ;  Grimberg  v.  Columbia,  etc.,  Ass'n,  47  Or.  257,  83  Pac.  194, 
114  Am.  St.  Rep.  927  (liW.j).  For  the  rights  and  liabilities  of  those  who  ship 
imder  an  agreement  with  the  charterer  upon  a  vessel  whose  owner  retains  pos- 
session, see  Crossman  v.  Burrill,  179  U.  S.  100.  21  Sup.  Ct.  38.  45  L.  Ed.  106 
(1900) ;  AVehuer  v.  Dene  S.  S.  Co..  2  K.  B.  92  (190.5) ;  Rosenstein  v.  Vogemanu. 
102  App.  Div.  39,  92  N.  Y.  Supp.  SO  (1905) ;  Id.,  184  N.  Y.  325,  77  X.  E.  625 
(1906). 


Ch.  7)  SEVERAL   PERSONS    CONCERNED   IN   CARRIAGE,  233- 

In  Easter  term,  Cresswell  obtained  a  rule  nisi  for  a  new  trial,  on 
the  ground  of  misdirection. 

Alartin  now  showed  cause,  and  contended  that  there  was  no  mis- 
direction.    *     *    * 

Cresswell,  Baines,  and  Burrell,  in  support  of  the  rule.  This  is  not 
the  case  of  a  conveyance  traveling  throughout  a  continuous  line,  like 
a  coach,  for  instance,  which  professes  to  run  from  London  to  York; 
in  such  a  case  parties  are  not  bound  to  look  out  for  the  particular 
proprietors  interested  in  the  different  parts  of  the  line.  But  there 
it  is  held  out  to  the  public  as  one  line;  this  is  the  case  of  a  company- 
known  as  the  Lancaster  &  Preston  Junction  Railway,  and  holding 
themselves  out  to  the  world  as  the  proprietors  of  and  carriers  upon 
that  distinct  line  of  railway  only.  To  hold  them  liable  for  the  loss 
of  a  parcel  beyond  the  limits  of  their  own  line  would  therefore  be 
very  unjust.  Suppose  the  case  of  a  known  coach  from  London  to- 
Stamford,  and  a  party  delivers  to  the  book-keeper  a  parcel  directed  to 
York,  does  that  prove  a  contract  to  carry  it  to  York?  [Lord  Abinger,. 
C.  B.  What  would  be  the  undertaking  of  the  carrier  in  that  case?] 
To  carry  to  Stamford,  and  forward  thence  to  York.  Parties  must 
be  assumed  to  contract  in  reference  to  the  known  mode  in  which  the 
carrier  carries  on  his  business.     *    *     * 

Lord  Abinger,  C.  B.^  The  simple  question  in  this  case  is,  whether 
the  learned  judge  misdirected  the  jury  in  telling  them  that  if  the  case 
were  stripped  of  all  other  circumstances  beyond  the  mere  fact  of 
knowledge  by  the  party  that  the  defendants  were  carriers  only  from 
Lancaster  to  Preston,  and  if,  under  such  circumstances,  they  accepted 
a  parcel  to  be  carried  on  to  a  more  distant  place,  they  were  liable  for  the 
loss  of  it,  this  being  evidence  whence  the  jury  might  infer  that  they 
undertook  to  carry  it  in  safety  to  that  place.  I  think  that  in  this' 
proposition  there  was  no  misdirection.  It  is  admitted  by  the  defend- 
ants' counsel  that  the  defendants  contract  to  do  something  more  with 
the  parcel  than  merely  to  carry  it  to  Preston;  they  say  the  engage- 
ment is  to  carry  to  Preston,  and  there  to  deliver  it  to  an  agent,  who 
is  to  carry  it  further,  who  is  afterwards  to  be  replaced  by  another, 
and  so  on  until  the  end  of  the  journey.  Now  that  is  a  very  elaborate 
kind  of  contract;  it  is  in  substance  giving  to  the  carriers  a  general 
power,  along  the  whole  line  of  route,  to  make  at  their  pleasure  fresh 
contracts,  which  shall  be  binding  upon  the  principal  who  employed 
them.  But  if,  as  it  is  admitted  on  both  sides,  it  is  clear  that  something 
more  was  meant  to  be  done  by  the  defendants  than  carrying  as  far  as 
Preston,  is  it  not  for  the  jury  to  say  what  is  the  contract,  and  how 
much  more  was  undertaken  to  be  done  by  them?  Now  it  certainly 
might  be  true  that  the  contract  between  these  parties  was  such  as 
that  suggested  by  the  counsel  for  the  defendants;   but  other  views  of 

5  Parts  of  the  statement  of  facts  and  of  the  arguments  of  counsel  are  omit- 
ted. 


234  THE   CAUUIEU'S   UNDERTAKING.  (Part  2 

the  case  may  be  suggested  quite  as  probable ;  such,  for  instance,  as 
that  these  railway  companies,  though  separate  in  themselves,  are  in 
the  habit,  for  their  own  advantage,  of  making  contracts,  of  which  this 
was  one,  to  convey  goods  along  the  whole  line,  to  the  ultimate  termi- 
nus, each  of  them  being  agents  of  the  other  to  carry  them  forward, 
and  each  receiving  their  share  of  the  profits  from  the  last.  The  fact 
that,  according  to  the  agreement  proved,  the  carriage  was  to  be  paid 
at  the  end  of  the  journey,  rather  confirms  the  notion  that  the  per- 
sons who  were  to  carry  the  goods  from  Preston  to  their  final  destina- 
tion were  under  the  control  of  the  defendants,  who  consequently  ex- 
ercised some  influence  and  agency  beyond  the  immediate  terminus  of 
their  own  railway. 

Is  it  not  then  a  question  for  the  jury  to  say  what  the  nature  of  this 
contract  was ;  and  is  it  not  as  reasonable  an  inference  for  them  to 
draw,  that  the  whole  was  one  contract,  as  the  contrary?  I  hardly 
think  they  w^ould  be  likely  to  infer  so  elaborate  a  contract  as  that 
which  the  defendants'  counsel  suggests ;  namely,  that  as  the  line  of 
the  defendants'  railway  terminates  at  Preston,  it  is  to  be  presumed 
that  the  plaintiff,  who  intrusted  the  goods  to  them,  made  it  part  of 
his  bargain  that  they  should  employ  for  him  a  fresh  agent  both  at 
that  place  and  at  every  subsequent  change  of  railway  or  conveyance, 
and  on  each  shifting  of  the  goods  give  such  a  document  to  the  new 
agent  as  should  render  him  responsible.  Suppose  the  owner  of  goods 
sent  under  such  circumstances,  when  he  finds  they  do  not  come  to 
hand,  comes  to  the  railway  office  and  makes  a  complaint,  then,  if  the 
defendants'  argument  in  this  case  be  well  founded,  unless  the  railway 
company  refuse  to  supply  him  with  the  name  of  the  new  agent, 
they  break  their  contract.  It  is  true  that,  practically,  it  might  make 
no  great  difference  to  the  proprietor  of  the  goods  w^hich  was  the  real 
contract,  if  their  not  immediately  furnishing  him  with  the  name  would 
entitle  him  to  bring  an  action  against  them. 

But  the  question  is,  why  should  the  jury  infer  one  of  these  con- 
tracts rather  than  the  other?  which  of  the  two  is  the  most  natural, 
the  most  usual,  the  most  probable?  Besides,  the  carriage-money  being 
in  this  case  one  undivided  sum  rather  supports  the  inference,  that 
although  these  carriers  carry  only  a  certain  distance  with  their  own 
vehicles,  they  make  subordinate  contracts  with  the  other  carriers,  and 
are  partners  inter  se  as  to  the  carriage-money — a  fact  of  which  the 
owner  of  the  goods  could  know  nothing ;  as  he  only  pays  the  one  en- 
tire sum  at  the  end  of  the  journey,  which  they  afterwards  divide  as 
they  please.  Not  only,  therefore,  is  there  some  evidence  of  this  being 
the  nature  of  the  contract,  but  it  is  the  most  likely  contract  under  the 
circumstances;  for  it  is  admitted  that  the  defendants  undertook  to  do 
more  than  simply  to  carry  the  goods  from  Lancaster  to  Preston.  The 
whole  matter  is  therefore  a  question  for  the  jury,  to  determine  wheth- 
er the  contract  was  on  the  evidence  before  them.  With  respect  to  the 
case  referred  to,  of  the  booking  office  in  London,  it  only  goes  to  show 


Ch.  7)  SEVERAL   PERSONS    CONCERNED   IN   CARRIAGE.  235 

that  when  persons  take  charge  of  parcels  at  such  an  office  they  merely 
make  themselves  agents  to  book  for  the  stagecoaches.  You  go  to  the 
office  and  book  a  parcel;  the  effect  of  this  is  to  make  the  booker  your 
agent,  instead  of  going  to  the  coach  office  yourself;  and  so  that  he 
sends  the  parcel  to  the  proper  coach  office,  and  once  delivers  it  there, 
he  has  discharged  himself;  he  has  nothing  to  do  with  the  carriage  of 
the  goods. 

In  cases  like  the  present,  particular  circumstances  might  no  doubt 
be  adduced  to  rebut  the  inference  which,  prima  facie,  must  be  made, 
of  the  defendants  having  undertaken  to  carry  the  goods  the  whole 
way.  The  taking  charge  of  the  parcel  is  not  put  as  conclusive  evi- 
dence of  the  contract  sued  on  by  the  plaintiff;  it  is  only  prima  facie 
evidence  of  it;  and  it  is  useful  and  reasonable  for  the  benefit  of  the 
public  that  it  should  be  so  considered.  It  is  better  that  those  who 
undertake  the  carriage  of  parcels,  for  their  mutual  benefit,  should  ar- 
range matters  of  this  kind  inter  se,  and  should  be  taken  each  to  have 
made  the  others  their  agents  to  carry  forward. 

GuRNEY^  B.  I  think  there  is  no  misdirection  in  this  case,  and  that 
the  jury  might  fairly  infer  that  the  contract  was  such  as  was  stated 
by  the  learned  judge.  If  the  goods  were  to  be  carried  only  in  the 
narrow  sense  contended  for  by  the  defendants,  then,  if  the  place  of 
their  destination  were  but  three  miles  beyond  Preston,  and  they  were 
lost  on  the  other  side  of  the  railway  terminus,  the  defendants  are  not 
to  be  liable,  but  the  plaintiff  is  to  find  out  somebody  or  other  who  is 
to  be  liable  in  respect  of  the  carriage  for  those  three  miles. 

RoLFE,  B.  I  am  of  the  same  opinion,  and  think  the  construction 
we  are  putting  on  the  agreement  is  not  only  consistent  with  law,  but 
is  the  only  one  consistent  with  common  sense  and  the  convenience  of 
mankind.  What  I  told  the  jury  was  only  this,  that  if  a  party  brings 
a  parcel  to  a  railway  station,  which  in  this  respect  is  just  the  same  as 
a  coach  office,  knowing  at  the  time  that  the  company  only  carry  to  a 
particular  place,  and  if  the  railway  company  receive  and  book  it  to 
another  place  to  which  it  is  directed,  prima  facie  they  undertake  to 
carry  it  to  that  other  place.  That  was  my  view  at  the  trial,  and  noth- 
ing has  occurred  to  alter  my  opinion. 

As  to  the  case  which  has  been  put,  of  a  passenger  injured  on  the 
line  of  railway  beyond  that  where  he  was  originally  booked,  I  suppose 
it  is  put  as  a  reductio  ad  absurdum;  but  I  do  not  see  the  absurdity. 
If  I  book  my  place  at  Euston  Square,  and  pay  to  be  carried  to  York, 
and  am  injured  by  negligence  of  somebody  between  Euston  Square 
and  York,  I  do  not  know  why  I  am  not  to  have  my  remedy  against 
the  party  who  so  contracted  to  carry  me  to  York.  But,  at  all  events, 
in  the  case  of  a  parcel,  any  other  construction  would  open  the  door  to 
incalculable  inconveniences.  You  book  a  parcel,  and  on  its  being  lost, 
you  are  told  that  the  carrier  is  responsible  only  for  one  portion  of 
the  line  of  road.     What  would  be  the  answer  of  the  owner  of  the 


236  THE  carrier's  undertaking.  (Part  2 

goods?  "I  know  that  I  booked  the  parcel  at  the  Golden  Cross  for 
Liverpool,  and  my  contract  with  the  carrier  was  to  take  it  to  Liver- 
pool." All  convenience  is  one  way,  and  there  is  no  authority  the  other 
way. 

Rule  discharged.® 


MYRICK  V.  MICHIGAN  CENT.  R.  CO. 

(Supreme  Court  of  the  United  States,  1882.    107  U.  S.  102,  1  Sup.  Ct.  423,  27  L. 

Ed.  325.) 

Action  for  breach  of  contract  to  carry  cattle  from  Chicago  to  Phila- 
delphia and  there  deliver  to  shipper's  order.  The  defendant  operated 
a  railroad  between  Chicago  and  Detroit.  Its  line  connected  at  Detroit 
with  lines  of  other  companies  to  Philadelphia.  Plaintiff  delivered 
cattle  to  the  defendant  for  transportation  and  took  a  receipt  which 
ran  as  follows: 

Michigan  Central  Railroad  Company, 

Chicago  Station,  Nov.  7th,  1877. 

Received  from  Paris  Myrick,  in  apparent  good  order,  consigned 
order  Paris  Myrick  (notify  J.  and  W.  Blaker,  Philadelphia,  Pa.): 


Articles. 


Two  hundred  and  two  (202)  cattle 


Weight  or 
Measure. 


240,000 


Advance  charges,  $12.00.  INIarked  and  described  as  above  (con- 
tents and  value  otherwise  unknown)  for  transportation  by  the  Michi- 
gan Central  Railroad  Company  to  the  warehouse  at 

Wm.  Geagan,  Agent. 

On  the  margin  and  back  of  the  receipt  were  a  printed  notice  and 
rules,  the  purport  of  which  is  stated  in  the  opinion.  Defendant  car- 
ried the  cattle  to  Detroit  and  there  delivered  them  to  a  connecting 
carrier  for  transportation  to  Philadelphia.  They  were  misdelivered 
at  Philadelphia. 

The  plaintiff  had  a  verdict  and  judgment.  The  case  comes  to  this 
court  on  writ  of  error.^ 

«  See  this  and  later  English  cases  reviewed  in  Gray  v.  Jackson,  51  N.  H.  9, 
12-2.3.  12  Am.  Rep.  1  (1871). 

"The  proposition  that  there  is  evidence  for  the  jury  to  consider  is  not  iden- 
tical with  the  proposition  that  the  evidence,  if  believed,  raises  a  presumption 
of  fact.  The  proposition  that  there  is  evidence  to  be  considered  imports  that 
there  may  be  a  presumption  of  fact.  But  generally  it  must  be  left  to  the  jury 
to  say  whether  there  is  one,  and  in  many  cases  that  is  the  main  question  which 
they  have  to  decide."  Holmes.  J.,  in  Commonwealth  v.  Briant,  142  Mass.  4G3,. 
8  N.  E.  338,  56  Am.  Rep.  707  (1886). 

7  The  statement  of  facts  has  been  rewritten. 


Cll.  7)  SEVERAL  PERSONS    CONCERNED   IN  CARRIAGE.  237 

Field,  J.  The  principal  question  presented  by  the  instruction  re- 
quested by  the  defendant  has  been  elaborately  considered  and  ad- 
judged by  this  court.  It  is  only  necessary,  therefore,  to  state  the  con- 
clusion reached. 

A  railroad  company  is  a  carrier  of  goods  for  the  public,  and,  as 
such,  is  bound  to  carry  safely  whatever  goods  ar'e  intrusted  to  it  for 
transportation,  within  the  course  of  its  business,  to  the  end  of  its 
route,  and  there  deposit  them  in  a  suitable  place  for  their  owners  or 
consignees.  If  the  road  of  the  company  connects  with  other  roads, 
and  goods  are  received  for  transportation  beyond  the  termination  of 
its  own  line,  there  is  superadded  to  its  duty  as  a  common  carrier  that 
of  a  forwarder  by  the  connecting  line;  that  is,  to  deliver  safely  the 
goods  to  such  line — the  next  carrier  on  the  route  beyond.  This  for- 
warding duty  arises  from  the  obligation  implied  in  taking  the  goods 
for  the  point  beyond  its  own  line.  The  common  law  imposes  no 
greater  duty  than  this.  If  more  is  expected  from  the  company  re- 
ceiving the  shipment,  there  must  be  a  special  agreement  for  it.  This 
is  the  doctrine  of  this  court,  although  a  different  rule  of  liability  is 
adopted  in  England  and  in  some  of  the  States.  As  was  said  in  Rail- 
road Company  v.  Manufacturing  Company:  "It  is  unfortunate  for 
the  interests  of  commerce  that  there  is  any  diversity  of  opinion  on  such 
a  subject,  especially  in  this  country;  but  the  rule  that  holds  the  car- 
rier only  liable  to  the  extent  of  his  own  route,  and  for  the  safe  stor- 
age and  delivery  to  the  next  carrier,  is  in  itself  so  just  and  reasonable 
that  we  do  not  hesitate  to  give  it  our  sanction."  16  Wall.  318,  334,  21 
L.  Ed.  297. 

This  doctrine  was  approved  in  the  subsequent  case  of  Railroad 
Company  v.  Pratt,  although  the  contract  there  was  to  carry  through 
the  whole  route.  22  Wall.  123,  23  L.  Ed.  827.  Such  a  contract  may, 
of  course,  be  made  with  any  one  of  different  connecting  lines.  There 
is  no  objection  in  law  to  a  contract  of  the  kind,  with  its  attendant 
liabilities.  See,  also.  Insurance  Company  v.  Railroad  Company,  104 
U.  S.  146,  36  L.  Ed.  679. 

The  general  doctrine,  then,  as  to  transportation  by  connecting  lines, 
approved  by  this  court,  and  also  by  a  majority  of  the  state  courts 
amounts  to  this :  that  each  road,  confining  itself  to  its  common-law 
liability,  is  only  bound,  in  the  absence  of  a  special  contract,  to  safely 
carry  over  its  own  route  and  safely  to  deliver  to  the  next  connecting 
•carrier,  but  that  any  one  of  the  companies  may  agree  that  over  the 
whole  route  its  liability  shall  extend.  In  the  absence  of  a  special 
agreement  to  that  effect,  such  liability  will  not  attach,  and  the  agree- 
ment will  not  be  inferred  from  doubtful  expressions  or  loose  language, 
"but  only  from  clear  and  satisfactory  evidence.  Although  a  railroad 
company  is  not  a  common  carrier  of  live  animals  in  the  same  sense 


238  THE  carrier's  undertaking.  (Part  2 

that  it  is  a  carrier  of  goods,  its  responsibilities  being  in  many  respects 
different,  yet  when  it  undertakes  generally  to  carry  such  freight  it 
assumes,  under  similar  conditions,  the  same  obligations,  so  far  as  the 
route  is  concerned  over  which  the  freight  is  to  be  carried. 

In  the  present  case  the  court  below  held  that  by  its  receipt,  con- 
strued in  the  light  of  the  circumstances  under  which  it  was  given, 
the  Michigan  Central  Railroad  Company  assumed  the  responsibility 
of  transporting  the  cattle  over  the  whole  route  from  Chicago  to 
Philadelphia.  It  did  not  submit  the  receipt  with  evidence  of  the 
attendant  circumstances  to  the  jury  to  determine  whether  such  a 
through  contract  was  made.  It  ruled  that  the  receipt  itself  constituted 
such  a  contract.  In  this  respect  it  erred.  The  receipt  does  not,  on 
its  face,  import  any  bargain  to  carry  the  freight  through.  It  does  not 
say  that  the  freight  is  to  be  transported  to  Philadelphia  or  that  it  was 
received  for  transportation  there.  It  only  says  that  it  is  consigned 
to  the  order  of  Paris  Myrick,  and  that  the  Blakers  at  Philadelphia  are 
to  be  notified.  And,  after  the  description  of  the  property,  it  adds, 
"Marked  and  described  as  above  (contents  and  value  otherwise  un- 
known) for  transportation  by  the  Michigan  Central  Railroad  Com- 
pany to  the   warehouse   at  ,"  leaving  the  place   blank.     This 

blank  may  have  been  intended  for  the  insertion  of  some  place  on  the 
road  of  the  company,  or  at  its  termination.  It  cannot  be  assumed  by 
the  court,  in  the  absence  of  evidence  on  the  point,  that  it  was  intend- 
ed for  the  place  of  the  final  destination  of  the  cattle.  On  the  mar- 
gin of  the  receipt  is  the  following:  "Notice. — See  rules  of  transpor- 
tation on  the  back  hereof."  And  among  the  rules  is  one  declaring 
that  goods  consigned  to  any  place  off  the  company's  line,  or  beyond 
it,  would  be  sent  forward  by  a  carrier  or  freightman,  when  there  are 
such,  in  the  usual  manner,  the  company  acting  for  that  purpose  as 
the  agent  of  the  consignor  or  consignee,  and  not  as  carrier;  and  that 
the  company  would  not  be  responsible  for  any  loss,  damage,  or  injury 
to  the  property  after  the  same  shall  have  been  sent  from  its  warehouse 
or  station.  Though  this  rule,  brought  to  the  knowledge  of  the  ship- 
per, might  not  limit  the  liability  imposed  by  a  specific  through  con- 
tract, yet  it  would  tend  to  rebut  any  inference  of  such  a  contract  from 
the  receipt  of  the  goods  marked  for  a  place  beyond  the  road  of  the 
company. 

The  doctrine  invoked  by  the  plaintiff's  counsel  against  the  limitation 
by  contract  of  the  common-law  responsibility  of  carriers  has  no  ap- 
plication. There  is,  as  already  stated,  no  common-law  responsibility 
devolving  upon  any  carrier  to  transport  goods  over  other  than  its 
own  lines,  and  the  laws  of  Illinois  restricting  the  right  to. limit  such 
responsibility  do  not,  therefore,  touch  the  case.  Nor  was  the  common- 
law  liability  of  the  defendant  corporation  enlarged  by  the  fact  that 
a  notice  of  the  charges  for  through  transportation  was  posted  in  the 
defendant's  station  house  at  Chicago.     Such  notices  are  usually  found 


Ch.  7)  SEVERAL  PERSONS    CONCERNED   IN   CARRIAGE.  239 

in  stations  on  lines  which  connect  with  other  hnes,  and  they  furnish 
important  information  to  shippers,  who  naturally  desire  to  know  what 
the  charges  are  for  through  freight  as  well  as  for  those  over  a  single 
line.  It  would  be  unfortunate  if  this  information  could  not  be  given 
by  a  public  notice  in  the  station  of  a  company  without  subjecting  that 
company,  if  freight  is  taken  by  it,  to  responsibility  for  the  manner  in 
which  it  is  carried  on  intermediate  and  connecting  lines  to  the  end  of 
the  route. 

Nor  was  the  liability  of  the  company  affected  by  the  fact  that  the 
notice  on  the  margin  of  the  receipt  stated  that  the  ticket  given  might 
be  "exchanged  for  a  through  bill  of  lading."  It  would  seem  to  in- 
dicate that  the  receipt  was  not  deemed  of  itself  to  constitute  a  through 
contract.  The  through  bill  of  lading  may  also  have  contained  a  limi- 
tation as  to  the  extent  of  the  route  over  which  the  company  would 
undertake  to  carry  the  cattle.  Besides,  if  weight  is  to  be  given  to  this 
notice  as  characterizing  the  contract  made,  it  must  be  taken  with  the 
rule  to  which  it  also  calls  attention,  that  the  company  assumed  re- 
sponsibility only  for  transportation  over  its  own  Hne. 

It  follows  from  the  views  expressed  that  the  court  below  erred  in 
its  charge  that  the  ticket  or  bill  of  lading  was  a  through  contract, 
whereby  the  defendant  company  agreed  to  transfer  the  cattle  to  Phila- 
delphia, and  safely  deliver  them  there  to  the  order  of  Myrick. 

Our  attention  has  been  called  to  some  decisions  of  the  Supreme 
Court  of  Illinois,  which  would  seem  to  hold  that  a  railroad  company 
which  receives  goods  to  carry,  marked  for  a  particular  destination, 
though  beyond  its  own  line,  is  prima  facie  bound  to  carry  them  to 
that  place  and  deliver  them  there,  and  that  an  agreement  to  that  ef- 
fect is  imphed  by  the  reception  of  goods  thus  marked.  Illinois  Cen- 
tral Railroad  Co.  v.  Frankenberg,  54  111.  88,  5  Am.  Rep.  93 ;  Illinois 
Central  Railroad  Co.  v.  Johnson,  34  111.  389. 

Assuming  that  such  is  the  purport  of  the  decisions,  they  are  not 
binding  upon  us.  What  constitutes  a  contract  of  carriage  is  not  a 
question  of  local  law.  upon  which  the  decision  of  a  state  court  must 
control.  It  is  a  matter  of  general  law,  upon  which  this  court  will 
exercise  its  own  judgment.  Chicago  City  v.  Robbins,  2  Black,  418, 
17  L.  Ed.  298;  Raifroad  Company  v.  National  Bank,  102  U.  S.  14, 
26  L.  Ed.  61 ;  Hough  v.  Railway  Company,  100  U.  S.  213,  25  L.  Ed. 
612. 

If  the  doctrine  of  the  Supreme  Court  of  Illinois,  as  to  what  consti- 
tutes a  contract  of  carriage  over  connecting  lines  of  roads,  is  sound, 
it  ought  to  govern,  not  only  in  Illinois,  but  in  other  states;  and  yet 
the  tribunals  of  other  states,  and  a  majority  of  them,  hold  the  reverse 
of  the  Illinois  court,  and  coincide  with  the  views  of  this  court.  Such 
is  the  case  in  Massachusetts.  Nutting  v.  Connecticut  River  Railroad 
Co.,  1  Gray  (Mass.)  502;  Burroughs  v.  Norwich  &  Worcester  Rail- 
road Co.,  100  Mass.  26,  1  Am.  Rep.  78.     If  we  are  to  follow  on  this 


2-iO  THE   carrier's  UNDERTAKING.  (Part  2 

subject  the  ruling  of  the  state  courts,  we  should  be  obliged  to  give 
a  different  interpretation  to  the  same  act — the  reception  of  goods 
marked  for  a  place  beyond  the  road  of  the  company — in  different 
states,  holding  it  to  imply  one  thing  in  Illinois  and  another  in  Massa- 
chusetts. 

The  judgment  must  be  reversed,  and  the  case  remanded  for  a  new 
trial;    and  it  so  ordered.^ 


CHICAGO  &  A.  R.  CO.  v.  MULFORD. 
(Supreme  Court  of  Illinois,  189fi.    162  111.  522,  44  N.  E.  861,  35  L.  R.  A.  599.) 

Cartwright,  J.  Appellees  recovered  a  judgment  of  $10,854.60  in 
the  circuit  court  of  Cook  county  in  an  action  of  assumpsit  against 
appellant  for  the  value  of  certain  coupons  for  passage  over  the  Lake 
Erie  &  Western  Railway  and  the  Ohio  Central  Railroad,  attached  to 
passenger  tickets  sold  by  appellant  to  appellees.  From  that  judgment 
an  appeal  was  taken  by  appellant  to  the  Appellate  Court,  which  affirmed 
the  judgment. 

The  cause  was  tried  before  the  court  without  a  jury,  and  at  the 
conclusion  of  the  trial  the  defendant  entered  its  motion  to  exclude 
the  evidence  for  the  plaintiffs.  The  motion  was  denied,  and  an  excep- 
tion taken.  The  motion  was  in  the  nature  of  a  demurrer  to  the  evi- 
dence, and  that  it  was  proper  and  in  apt  time  is  not  questioned.  It 
admitted  all  that  the  evidence  proved  or  tended  to  prove  on  the  part 
of  the  plaintiff's;  but,  if  there  was  no  evidence  legally  tending  to 
prove  a  cause  of  action  against  the  defendant,  it  should  have  been 
sustained.  The  undisputed  evidence  tended  to  prove  the  following 
facts : 

Plaintiffs  were  railroad  ticket  brokers,  having  offices  in  various 
cities  in  the  United  States.  In  1880,  Mr.  Mulford  had  charge  of 
their  office  in  Chicago,  and  Mr.  McKenzie  of  the  one  in  St.  Louis. 
In  the  fall  of  that  year  there  was  what  was  called  a  "rate  war,"  in 
which  defendant  was  engaged;  and  tickets  were  being  sold  from 
Kansas  City,  Mo.,  to  diff'erent  points  on  the  Lake  Erie  &  Western 
Railway  for  one  dollar.  The  Wabash  Railway  was  selling  tickets 
from  Kansas  City  eastward  at  nominal  rates,  thereby  taking  traffic 
from  the  defendant,  and  also  from  the  Lake  Erie  &  Western.  Antic- 
ipating that  the  rate  war  would  soon  end,  the  defendant  desired,  in 
that  event  to  be  able  to  compete  successfully  with  other  companies, 
and  decided  to  place  large  blocks  of  tickets  on  the  market  prior  to  the 

8  For  cases  ace.  and  contra,  see  6  Cyc.  479;  Carriers,  9  Cent.  Dig.  §  781,  4 
Dec.  Dig.  §§  172,  173 ;  106  Am.  St.  Rep.  60^612.  note.  The  acceptance  from 
an  initial  by  an  intermediate  carrier  of  goods  marked  for  a  point  beyond  his 
line  is  not  suificient  evidence  of  a  contract  to  carry  to  destination.  Chicago 
&  N.  W.  R.  Co.  V.  No.  Line  Packet  Co.,  70  111.  217  (1873). 


Ch.  7)  SEVERAL  PERSONS    CONCERNED  IN  CARRIAGE.  241 

anticipated  advance  of  rates.  Mr,  Mulford  was  in  Indianapolis  for 
the  purpose  of  establishing  a  ticket  office  there,  when  an  agent  of 
defendant  called  upon  him,  and  proposed  a  sale  of  tickets  from  Kan- 
sas City  east,  stating  that  defendant  would  give  plaintiffs  rates  through 
to  Toledo  and  Sandusky  so  low  that  by  adding  the  local  rate  they 
could  make  a  through  rate  to  New  York  or  Boston  that  would  be  less 
than  the  regular  through  rate.  Thereafter  negotiations  were  carried 
on,  the  result  of  which  was  that  plaintiffs  purchased  2,500  tickets  for 
the  aggregate  sum  of  $24,957.50,  from  Kansas  City,  over  defendant's, 
road,  to  Bloomington,  and  from  that  place  over  the  Lake  Erie  &  West- 
ern Railway,  and  a  part  of  them  also  over  the  Ohio  Central  Railroad. 
These  tickets  were  issued  by  the  defendant  under  an  agreement  with 

the  Lake  Erie  &  Western  Railway,  and  by  authority  from  that  road. 
^     ^     ^ 

The  rate  war  ended  in  the  spring  or  summer  of  1882.  Plaintiffs 
sold  the  tickets  to  their  customers,  and  they  were  received  and  honor- 
ed by  the  respective  roads  until  June  6,  1885,  when,  the  Lake  Erie 
&  Western  having  been  placed  in  the  hands  of  a  receiver,  he  was  or- 
dered by  the  United  States  court  for  the  Southern  district  of  Illinois, 
the  district  of  Indiana,  and  the  Northern  district  of  Ohio,  to  refuse  to 
accept  for  passage  over  the  road  any  of  the  tickets  in  question.  Plain- 
tiff's had  sold,  prior  to  that  time,  about  1,181  tickets,  and  had  on  hand 
about  1,319.  After  the  refusal  of  the  receiver  of  the  Lake  Erie  &  West- 
ern Railway  to  honor  the  tickets,  the  coupons  for  that  road  became 
worthless,  and  those  for  the  Ohio  Central  could  not  be  used  because 
they  were   first  in  order,  being  attached   at   the  head  of  the   ticket. 

:)c         ^         ;j; 

The  question  raised  by  the  motion  is  whether  these  facts  rendered 
through  tickets  in  the  form  of  coupons  which  are  purchased  of  the 
receiver  of  the  Lake  Erie  &  Western  to  perform  the  contract.  In  the 
English  courts  it  is  held  that  the  sale  of  a  ticket  by  a  railroad  com- 
pany over  its  own  and  connecting  lines  is  evidence  of  a  contract  for 
through  carriage  to  the  destination;  and  that  the  company  making 
the  sale  thereby  enters  into  a  contract  that  renders  itself  liable  for  the 
full  journey.  In  this  country  the  decisions  are  not  harmonious ;  but 
the  general  rule  is  stated  in  the  American  &  English  Encyclopedia  of 
Law  (volume  25,  p.  1085)  as  follows:  "But  the  doctrine  founded  in 
reason,  and  best  supported  by  the  authorities  in  this  country,  is  that, 
in  the  absence  of  a  contract  making  it  responsible,  the  carrier  selling 
the  tickets  acts  merely  as  the  agent  of  the  other  lines,  and  there  is  no 
extra  terminal  liability;  the  rights  of  the  passenger,  and  the  duties 
and  responsibilities  of  the  several  companies  over  whose  roads  he  is 
entitled  to  passage,  being  the  same  as  if  he  had  purchased  a  ticket  at 
the  office  of  each  company  constituting  the  through  line." 

The  rule  is  also  stated  in  2  Redf.  R.  R.  §  201,  as  follows :  "These 
through  tickets  in  the  form  of  coupons  which  are  purchased  of  the 
Green  Carb. — 16 


242  THE  carrier's  undertaking.  (Part  2 

first  company,  and  which  entitle  the  persons  holding  them  to  pass  over 
successive  roads,  with  ordinary  passenger  baggage,  sometimes  for 
thousands  of  miles,  in  this  country,  import  commonly  no  contract 
with  the  first  company  to  carry  such  person  beyond  the  line  of  their 
own  road.  They  are  to  be  regarded  as  distinct  tickets  for  each  road, 
sold  by  the  first  company,  as  agent  for  the  others,  so  far  as  the  passen- 
ger is  concerned,"  etc.  This  rule  has  been  adopted  by  this  court. 
Railroad  Co.  v.  Connell,  112  111.  295,  54  Am.  Rep.  238 ;  Railroad  Co. 
.V.  Dumser,  161  III.  190,  43  N.  E.  698. 

It  is  insisted  that  this  court,  in  the  case  of  Railroad  Co.  v.  Copeland, 
24  111.  332,  76  Am.  Dec.  749,  held  that  a  railroad  company  selling 
through  tickets  over  its  own  and  other  roads  became  responsible  for 
the  carriage  of  the  passenger  to  the  end  of  the  route.  That  was  a 
suit  for  the  value  of  the  baggage  lost,  which  was  checked  by  the  rail- 
road company  from  Chicago  to  St.  Louis.  A  brass  check  was  given 
for  the  trunk  deliverable  at  St.  Louis,  and  the  company  giving  the  check 
was  held  liable.  In  the  subsequent  case  of  Railroad  Co.  v.  Fahey,  53 
111.  81,  4  Am.  Rep.  587,  w^iere  a  ticket  was  given  for  passage  over 
several  roads,  it  was  held  that  the  company  that  lost  the  baggage 
would  be  liable,  and  that  the  recognition  of  the  ticket  was  a  recognition 
of  the  agency  of  the  road  that  sold  it.  In  that  case  the  rule  as  now 
existing  with  reference  to  passengers  was  recognized  with  regard  to 
baggage. 

But  a  distinction  has  been  made  between  the  liability  in  the  case  of 
baggage  and  of  passengers,  and  the  liability  for  the  loss  of  baggage 
has  sometimes  been  held  to  be  the  same  as  in  other  cases  of  the  car- 
riage of  goods.  2  Redf.  R.  R.  §  201.  And  there  may  be  reasonable 
grounds  for  such  a  distinction,  although  the  carriage  of  the  baggage 
is  merely  incident  to  that  of  the  passenger.  In  such  cases  the  railroad 
company  takes  the  baggage  into  its  own  possession  and  control,  and 
a  check  is  given  which  may  be  regarded  as  a  single  contract  on  the 
part  of  the  company  to  deliver  the  goods  at  the  place  of  destination. 
Besides,  necessity  might  require  such  a  rule,  since  any  other  would  im- 
pose upon  the  passenger  the  necessity  of  looking  after  his  baggage, 
and  examining  it  at  each  change  from  one  road  to  another.  It  would 
often  be  practically  impossible  to  do  that,  or  to  prove  where  or  by 
whose  negligence  the  loss  occurred. 

It  is  not  necessary,  in  this  case,  to  determine  what  the  rule  would 
be  in  respect  to  a  loss  of  baggage,  as  it  is  not  involved.  But  it  is 
settled  what  the  contract  is  in  the  case  of  passengers,  and.  if  it  is 
otherwise  in  the  case  of  baggage,  it  rests  upon  some  distinction  aris- 
ing out  of  the  nature  of  the  dififerent  contracts.  If,  then,  the  defend- 
ant could  be  held  liable  as  principal,  it  must  be  because  of  some  con- 
tract other  than  that  arising  from  the  mere  sale  of  tickets.  The  only 
thing  outside  of  the  tickets  themselves  upon  which  any  claim  is  based 
that  there  was  a  contract  by  defendant  for  carriage  over  the  other 


Ch.  7)  SEVERAL   PERSONS    CONCERNED   IN   CARRIAGE.  243 

roads  consists  in  the  statement  made  in  Indianapolis  by  the  agent  of 
defendant,  and  given  above.  This  was  offered  as  an  inducement  to 
the  plaintiffs  to  buy  the  tickets,  but  it  had  no  tendency  to  alter  the 
contract  implied  by  the  law.  There  was  nothing  in  the  statement  as 
to  defendant  being  principal  or  agent  in  the  transaction,  and  nothing 
which  could  lead  plaintiff  to  suppose  that  the  contract  was  other  than 
the  law  would  imply.  The  cheapness  of  the  tickets  could  not  even 
raise  a  supposition  as  to  the  character  in  which  they  were  issued  or 
sold.  Whatever  the  price  may  have  been,  the  plaintiffs  knew  that  the 
tickets,  when  issued,  would  have  coupons;  and  the  last  one,  to  be 
first  taken  off,  would  read  over  the  Chicago  &  Alton,  and  the  next 
over  the  Lake  Erie  &  Western,  and  a  part  of  them  would  also  have 
coupons  over  the  Ohio  Central.  They  admittedly  knew  that  the  Lake 
Erie  &  W'estern  Railway  was  an  independent  line,  starting  from 
Bloomington  and  going  to  Muncie,  Ind.,  as  testified;  and  that  it  was 
not  run  or  managed  by  the  defendant. 

But  it  is  said  that  the  tickets  themselves  were  such  as  to  render  the 
defendant  liable.  On  the  heading  of  the  tickets  was  the  following: 
"Issued  by  Chicago  &  Alton  R.  R.  Good  for  one  first-class  passage 
to  station  stamped  in  margin  of  attached  coupon."  And  it  is  urged 
that  this  makes  the  ticket  a  contract  to  transport  the  holder  over  the 
Lake  Erie  &  Western.  The  coupons  for  passage  over  the  Lake  Erie 
&  Western  contained  the  following :  "Issued  by  Chicago  &  Alton  R.  R. 
— Lake  Erie  &  Western  R.  R."  At  the  bottom  of  the  coupon  was  the 
following:  "Via  C.  &  A.,  L.  E.  &  W."  On  the  coupons  for  passage 
over  the  Ohio  Central  Railroad  there  was :  "Issued  by  Chicago  & 
Alton  R.  R.  &  Ohio  Central  Railroad ;"  and  on  the  bottom  of  the  cou- 
pons:  "\ia  C.  &  A.,  L.  E.  &  W.,  O.  C."  The  statement  on  the  tick- 
ets and  coupons,  "Issued  by  the  Chicago  &  Alton  Railroad,"  added 
nothing  to  the  fact.  They  were  so  issued  to  the  knowledge  of  all 
the  parties,  and  the  statement  did  not  tend  to  show  in  any  manner  in 
what  capacity  they  were  so  issued.  We  do  not  see  how  the  statement, 
"Good  for  one  first-class  passage,"  affected  the  contract.  Ordinarily, 
a  ticket  is  a  mere  token  or  voucher.  Burdick  v.  People,  149  111.  600, 
36  N.  E.  948,  24  L.  R.  A.  152,  41  Am.  St.  Rep.  329 ;  Railroad  Co.  v. 
Dumser,  supra.  It  is  necessary  in  any  ticket  to  show  what  it  is  for. 
These  tickets  were  issued  for  first-class  passage  from  Kansas  City  to 
the  designated  station,  and  this  clause  was  placed  on  the  tickets  to 
indicate  for  what  purpose  they  were  intended  to  be  used.  There 
were,  in  addition,  .the  names  of  the  connecting  railroads  upon  the  cou- 
pons, showing  over  what  roads  they  were  good ;  and  there  was  noth- 
ing upon  the  tickets  regarding  the  contract  which  could  change  the 
rule  or  presumption  of  law.     *     *     * 

It  is  urged,  however,  that  the  defendant  is  liable  under  the  rule  of 
law  stated,  although  it  incurred  no  extra  terminal  responsibility  by 
the  sale  of  tickets.    The  claim  under  this  head  is  that  defendant  under- 


244  THE  carrier's  undertaking.  (Part  2 

took,  in  a  sale  of  the  tickets,  that  they  should  be  recognized  and  hon- 
ored by  the  Lake  Erie  &  Western  Railway  Company  as  good  for 
transportation  over  its  line.  The  only  way  in  which  the  Lake  Erie  & 
Western  Railway  Company  could  recognize  and  honor  the  tickets  was 
by  carrying  the  passengers ;  in  other  words,  by  performing  the  con- 
tract. And  this  would  be  making  an  agent  responsible  that  his  prin- 
cipal should  recognize  the  agency  and  carry  out  the  contract.  That  is 
not  the  liability  of  an  agent.  An  agent  does  impliedly  contract  that 
he  is  an  agent,  and  has  authority  to  do  the  act.  But  in  this  case  there 
is  no  question  that  such  was  the  fact.  *  *  *  That  defendant 
might  have  made  a  contract  for  the  carriage  of  passengers  over  the 
entire  line,  where  its  road  was  a  part  of  the  route,  is  not  doubted; 
but  the  evidence  did  not  tend  to  prove  that  any  such  contract  had  been 
made. 

It  is  suggested  that  the  defendant  might  be  liable  on  the  ground  of 
a  partnership  between  it  and  the  Lake  Erie  &  Western.  But  the 
evidence  does  not  tend  to  prove  partnership.  The  fact  that  each  road 
sells  through  tickets,  taking  its  own  share  of  the  price  according  to 
its  mileage,  does  not  constitute  them  partners.  25  Am.  &  Eng.  Enc. 
Law,  p.  1087.  And  corporations  cannot  enter  into  partnership  with 
each  other.  Bishop  v.  Preservers'  Co.,  157  111.  284,  41  N.  E.  765,  48 
Am.  St.  Rep.  317. 

There  were  other  questions  in  the  case,  but,  as  there  was  no  evi- 
dence tending  to  prove  any  contract  different  from  that  implied  by 
law,  the  conclusion  that  defendant  was  not  liable  cannot  be  escaped^ 
and  the  motion  of  the  defendant  should  have  been  sustained.  The 
judgments  of  the  appellate  and  circuit  courts  will  be  reversed,  and  the 
cause  remanded.    Reversed  and  remanded.* 

9  Parts  of  the  opinion  are  omitted.. 

Ace.  Hartan  v.  Eastern  R.  Co.,  114  Mass.  44  (1873).  Compare  Chicago  & 
Alton  R.  Co.  V.  Dumser,  161  111.  190,  43  N.  E.  698  (1896) ;  Pa.  Co.  v.  Loftis,  72 
Ohio  St.  288.  74  N.  E.  179.  106  Am.  St.  Rep.  597  (190.j),  tickets  boiiRht  in  re- 
liance on  advertisement  of  through  trip;  Hutchins  v.  Pa.  R.  Co.,  181  N.  Y. 
186.  73  N.  E.  972,  106  Am.  St.  Rep.  537  (1905),  ticket  issued  in  response  to 
request  for  through  transportation ;  Talcott  v.  Wabash  R.  Co.,  159  N.  Y. 
461.  54  N.  E.  1  (1899).  sample  trunk  checked  through  on  payment  of  excess 
baggage  charge ;  held  on  second  trial,  not  a  throusrh  contract.  109  App. 
Div.  491,  96  N.  Y.  Supp.  548,  affirmed  188  N.  Y.  608.  81  N.  E.  1176  (1907) ; 
Cheriy  v.  Kansas  City,  etc.,  Ry.  Co.,  61  Mo.  App.  303  (1895),  ticket  containing 
no  reference  to  connecting  carrier;  Central  R.  Co.  v.  Combs,  70  Ga.  533,  48 
Am.  Rep.  582  (1883). 

In  Atchison,  etc.,  R.  Co.  v.  Roach.  35  Kan.  740,  12  Pac.  93,  57  Am.  Rep.  199 
(1886).  .Johnston,  J.,  said:  "But  where  a  railroad  company  .sells  a  through 
ticket  for  a  single  fai-e  over  its  own  and  other  roads,  and  checks  the  baggage 
of  the  passenger  over  the  entire  route,  more  is  implied,  it  seems  to  us,  i;han 
the  mere  acceptance  of  the  property  marked  for  a  destination  beyond  the 
terminus  of  its  own  line.  The  sale  of  a  through  ticket  and  the  checking  of 
the  baggage  for  the  whole  distance  is  some  evidence  of  an  undertaking  to 
carry  the  passenger  and  baggage  to  the  end  of  the  .iourney." 

And  see  Kansas  City,  etc.,  R.  Co.  v.  Washington,  74  Ark.  9,  85  S.  W.  400,  69 
L.  R.  A.  65,  109  Am.  St.  Rep.  61  (1905). 


Ch.  7)  SEVERAL   PERSON'S    COXCERXED   IN   CARRIAGB.  245 

BLOCK  V.  FITCHBURG  R.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1885.     139  Mass,  308,  1  N.  E.  348.) 

Contract,  against  the  Fitchburg  Railroad  Company  and  seven  other 
railroad  corporations,  described  in  the  writ  as  "doing  business  to- 
gether as  a  line  for  the  purpose  of  carrying  freight,  under  the  name 
of  'Erie  &  North  Shore  Despatch,'  "  and  having  a  usual  place  of  busi- 
ness in  Boston.  *  *  *  Trial  in  the  superior  court  before  Staples, 
J.,  who  ordered  a  verdict  for  the  defendants.  The  plaintiff  alleged 
exceptions,  which  appear  in  the  opinion. 

Morton,  C.  J.^°  The  evidence  at  the  trial  tended  to  show  that  the 
several  defendant  corporations  formed  an  association  or  company, 
under  the  name  of  "The  Erie  &  North  Shore  Despatch,"  for  the  trans- 
portation of  merchandise  between  Boston  and  Chicago;  that  the  as- 
sociation had  an  agent  in  Boston  who  was  authorized  to  receive  goods 
at  Boston  for  transportation  over  the  line  to  Chicago,  and  to  give  bills 
of  lading  or  contracts  for  transportation  like  the  one  upon  which  the 
plaintiff  sues;  that  the  plaintiff  delivered  goods  to  such  agent,  and 
received  the  bill  of  lading  in  suit;  and  that  a  part  of  the  goods  were 
lost  between  Boston  and  Chicago.  By  the  bill  of  lading,  "The  Erie 
&  North  Shore  Despatch"  contracts  to  carry  the  goods  from  Boston 
by  the  Fitchburg  Railroad,  and  thence  by  the  Erie  &  North  Shore 
Despatch  to  Chicago,  and  there  to  deliver  them  to  connecting  railroad 
lines  to  be  forwarded  to  Denver,  their  destination.  The  several  rail- 
road companies  which  form  the  association  are  not  named  in  the 
contract.  It  is  a  single  and  indivisible  contract,  by  which  the  Erie  & 
North  Shore  Despatch  Line  agrees  to  carry  the  goods  to  Chicago,  the 
freight  to  be  earned  upon  the  delivery  there  to  the  connecting  line. 
So  far  as  the  question  in  this  case  is  concerned,  it  is  unlike  those  cases 
where  a  railroad  forming  one  link  in  a  line  of  connecting  roads  between 
two  points  receives  goods  to  be  transported  over  its  line  and  delivered 
to  the  connecting  road,  in  which  it  has  been  held  in  this  commonwealth 
that  each  railroad  in  the  continuous  line  is  liable  only  for  loss  or  dam- 
age happening  on  its  own  road.  Darling  v.  Boston  &  W.  R.  Co.,  11 
Allen,  295 ;  Gass  v.  New  York,  P.  &  B.  R.  Co.,  99  Mass.  220,  96  Am. 
Dec.  742;  Burroughs  v.  Norwich  &  W.  R.  Co.,  100  Mass.  26,  1  Am. 
Rep.  78;   Aigen  v.  Boston  &  M.  R.,  132  Mass.  423. 

The  defendants  formed  a  company,  and  in  its  name  made  a  special 
contract  to  carry  the  plaintiff's  goods  from  Boston  to  Chicago.  They 
are,  so  far  as  the  plaintiff  is  concerned,  partners,  and  liable  jointly 
and  severally  for  any  loss  or  damage  to  his  goods  between  Boston 
and  Chicago,  unless  they  are  exempted  from  liability  by  the  terms  of 
the  contract.     *     *     * 

Exceptions  sustained.^^ 

10  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 

11  See,  also.  Swift  v.  Pacific  Mail  S.  S.  Ck).,  106  N.  Y.  206,  12  N.  E.  583 
(1887) ;   Peterson  v.  Chicago,  etc.,  By.  Co.,  80  Iowa,  92,  45  N.  W.  573  (1890). 


246  THE  carrier's  undertaking.  (Part  2 

SECTION  2.— DELEGATION  OF  CARRIER'S  DUTY 
I.  Liability  of  the  Carrier  Who  Delegates 


BUCKLAND  v.  ADAMS  EXPRESS  CO. 
(Supreme  Judicial  Court  of  Massachusetts,  1867.    97  Mass.  124,  93  Am.  Dec.  OS.) 
See  ante,  p.  19,  for  a  report  of  the  case. 


HEGEMAN  v.  WESTERN  R.  CORPORATION. 

(Court  of  Appeals  of  New  York,  1855.    13  N.  Y.  9,  64  Am.  Dec.  517.) 

The  action  was  brought  to  recover  damages  for  injuries  to  the 
person  of  the  plaintiff,  alleged  to  have  been  caused  by  the  negligence 
of  the  defendant.  The  cause  was  tried  at  the  Rensselaer  county  cir- 
cuit, held  by  Justice  Win.  F.  Allen,  in  October,  1852.  The  plaintiff 
proved  that  the  defendant  was  the  proprietor  of  a  railroad  extending 
from  Greenbush  to  Boston ;  that  in  September,  1850,  the  plaintiff  was 
a  passenger  on  the  railroad,  having  taken  the  train  at  Greenbush  for 
Boston,  and  when  near  Hinsdale,  Mass.,  an  axle  of  the  car  in  which 
he  was  riding  broke,  and  three  of  the  passengers  in  the  car  were  killed 
and  the  plaintiff  was  seriously  and  permanently  injured.  *  *  * 
The  jury  returned  a  verdict  in  favor  of  the  plaintiff,  and  assessed 
his  damages  at  $9,900.  *  *  *  The  defendant  appealed  to  this 
court.     *     *     * 

Gardiner,  C.  J.^"  *  *  *  f^^Q  questions  were  presented  for 
the  consideration  of  the  jury.  First,  was  there  a  test  known  to  and 
used  by  others,  and  which  should  have  been  known  to  a  skillful  manu- 
facturer, by  which  the  concealed  defect  in  the  axle  of  the  car  could 
have  been  detected;  and  if  so,  then,  secondly,  was  the  injury  to  the 
plaintiff  the  consequence  of  that  imperfection?  There  was  evidence 
tending  to  establish  these  facts,  which  the  jury  have  found.     *     *     * 

It  was  said  that  carriers  of  passengers  are  not  insurers.  This  is 
true.  That  they  were  not  required  to  become  smelters  of  iron,  or 
manufacturers  of  cars,  in  the  prosecution  of  their  business.  This  also 
must  be  conceded.  What  the  law  does  require  is,  that  they  shall  fur- 
nish a  sufficient  car  to  secure  the  safety  of  their  passengers,  by  the 
exercise  of  the  "utmost  care  and  skill  in  its  preparation."  They  may 
construct  it  themselves,  or  avail  themselves  of  the  services  of  others ; 
but  in  either  case,  they  engage  that  all  that  well  directed  skill  can  do 

12  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


Ch.  7)       SEVERAL  PERSONS  CONCERNED  IN  CARRIAGE.  247 

has  been  done  for  the  accomplishment  of  this  object.  A  good  reputa- 
tion upon  the  part  of  the  builder  is  very  well  in  itself,  but  ought  not 
to  be  accepted  by  the  public,  or  the  law,  as  a  substitute  for  a  good 
vehicle.  What  is  demanded,  and  what  is  undertaken  by  the  corpora- 
tion, is  not  merely  that  the  manufacturer  had  the  requisite  capacity, 
but  that  it  was  skillfully  exercised  in  the  particular  instance.  If  to 
this  extent  they  are  not  responsible,  there  is  no  security  for  individu- 
als or  the  public.  *  *  *  The  judgment  of  the  Supreme  Court 
should  be  affirmed.^ ^ 


THORPE  v.  NEW  YORK  CENT.  &  H.  R.  R.  CO. 

(Court  of  Appeals  of  New  York,  1879.    76  N.  T.  402,  32  Am.  Rep.  325.) 

Andrews,  J.^*  The  defendant's  counsel,  upon  the  conclusion  of  the 
evidence,  moved  for  a  nonsuit,  on  the  ground  that  the  porter,  by  whom 
the  alleged  assault  was  committed,  was  not  the  servant  of  the  defend- 
ant, and  that  the  defendant  was  not  therefore  responsible  for  his  acts. 

13  Contra,  Grand  Rapids,  etc.,  R.  Co.  v.  Huntley,  3S  Mich.  537,  31  Am.  Rep. 
321  (1878).    And  see  Nashville,  etc.,  R.  Co.  v.  Jones.  9  Heisk.  (Tenn.)  28  (1871). 

In  Mamey  v.  Scott,  [1809]  1  Q.  B.  980.  an  action  by  a  longshoreman  against 
the  charterer  of  a  ship  for  injury  received  by  reason  of  the  defective  condition 
of  a  fixed  ladder  leading  to  the  hold,  Bigham,  J.,  said:  "I  think  that  a  man 
who  intends  that  others  shall  come  upon  proi>erty  of  which  he  is  the  occupier 
for  purposes  of  work  or  business  in  which  he  is  interested  owes  a  duty  to  those 
who  do  so  come  to  use  reasonable  care  to  see  that  the  property  and  the  ap- 
pliances upon  it  which  it  is  intended  shall  be  used  in  the  work  are  fit  for 
the  purpose  to  which  they  are  to  be  put,  and  he  does  not  discharge  this  duty 
by  merely  contracting  with  competent  people  to  do  the  work  for  him.  If  the 
parties  with  whom  he  so  contracts  fail  to  use  reasonable  care  and  damage 
results,  the  occupier  still  remains  liable.  *  *  *  The  effect  of  the  author- 
ities is  correctly  and  clearly  stated  in  Pollock  on  Torts  (5th  Ed.)  at  page  477: 
'The  duty  is  founded  not  on  ownership,  but  on  possession— in  other  words,  on 
the  structure  being  maintained  under  the  control  and  for  the  purposes  of  the 
person  held  answerable.  It  goes  beyond  the  common  doctrine  of  resiwnsibility 
for  servants,  for  the  occupier  cannot  discharge  himself  by  employing  an  in- 
dependent contractor  for  the  maintenance  and  repair  of  the  structure,  how- 
ever careful  he  may  be  in  the  choice  of  that  contractor.  Thus  the  duty  is 
described  as  being  Impersonal  rather  than  personal.  Personal  diligence  on 
the  part  of  the  occupier  and  his  servants  is  immaterial.  The  structure  has 
to  be  in  a  reasonably  safe  condition  so  far  as  the  exercise  of  reasonable  care 
and  skill  can  make  it  so.'  And  on  page  482:  'The  possession  of  any  structure 
to  which  human  beings  are  intended  to  commit  themselves  or  their  property, 
animate  or  inanimate,  entails  this  duty  on  the  occupier,  or  rather  controller. 
It  extends  to  gangways  or  stagings  in  a  dock  *  *  *  to  a  temporary  stand 
*     *     *     to  carriages  traveling  on  a  railway  or  road     *     *     *     to  ships.'  " 

Ace.  Hynuin  v.  Nye,  [ISSl]  6  Q.  B.  D.  685,  carriage  with  driver  hired  at- 
livery  stable. 

A  railroad  company  is  liable  to  a  passenger  for  injury  caused  by  a  defect 
in  a  bridge  or  embankment  due  to  neglect  of  the  contractor  who  built  it. 
Grote  V.  Chester,  etc..  Ry.  Co.,  2  Ex.  2.51  (1.848) ;  Philadelphia,  etc.,  R.  Co. 
V.  Anderson,  94  Pa.  351.  39  Am.  Rep.  787  (1880).  Or  for  the  defective  con- 
dition of  a  station  or  of  tracks  which  it  uses,  though  under  the  control  of 
another  company.  Peniston  v.  Chicago,  etc.,  R.  Co.,  .34  La.  Ann.  777,  44  Am. 
Rep.  444  (1882) ;   Buxton  v.  N.  E.  Ry.  Co.,  L.  R.  3  Q.  B.  549  (1868). 

1*  Part  of  the  opinion  is  omitted. 


248  THE  carrier's  undertaking.  (Part  2 

The  plaintiff  was  a  passenger  on  the  defendant's  train.  He  entered 
the  cars  at  Syracuse,  with  the  intention  of  riding  in  one  of  the  or- 
dinary cars  to  Auburn.  He  passed  through  the  two  ordinary  cars 
attached  to  the  train,  and  finding  no  vacant  seat  passed  into  the  draw- 
ing room  car,  and  when  called  upon  by  the  porter  to  pay  the  extra 
charge  for  a  seat  in  that  car,  declined  to  pay  the  sum  demanded,  for 
the  reason  that  he  could  find  no  seat  elsewhere,  but  expressed  a  willing- 
ness to  leave  the  car,  whenever  he  could  get  a  seat  in  the  other  cars. 
The  porter  thereupon  attempted  to  eject  the  plaintiff  from  the  car,  and 
for  this  assault  the  action  is  brought. 

The  proof  shows  that  all  the  seats  in  the  two  ordinary  cars  were  oc- 
cupied, and  that  several  persons  were  compelled  to  stand  in  the  pas- 
sageway, and  others  were  seated  on  the  woodbox,  for  want  of  other 
accommodation.  The  ground  upon  which  the  motion  for  nonsuit  was 
made  assumes  that,  under  the  circumstances,  the  plaintiff  was  justi- 
fied in  going  into  the  drawing  room  car,  and  that  the  act  of  the  porter, 
in  attempting  to  eject  him,  was  an  unjustifiable  assault,  but  the  claim 
is  made,  and  the  exception  to  the  refusal  to  nonsuit  is  sought  to  be  sup- 
ported, on  the  ground  that  the  porter  was  the  servant  of  Wagner,  the 
owner  of  the  drawing  room  car,  and  was  not,  in  fact  or  law,  the  serv- 
ant of  the  defendant. 

If  the  right  of  the  plaintiff  to  maintain  this  action  depends  upon 
the  existence  of  the  conventional  relation  of  master  and  servant,  be- 
tween the  defendant  and  the  porter  at  the  time  of  the  transaction  in 
question,  the  action  cannot  be  maintained.  The  porter  was  in  fact 
the  servant  of  Wagner,  Wagner  employed  him,  paid  him,  and  could 
at  any  time  discharge  him.  His  duty  was  to  take  charge  of  the  draw- 
ing room  car  on  the  train,  assign  seats  to  passengers  desiring  seats 
therein,  and  collect  and  receive  the  sums  charged  therefor.  He  was 
instructed  by  Wagner  to  remove  from  the  car  persons  who  refused 
to  pay  the  extra  fare,  and  looking  at  the  contract  of  employment  only, 
he  was,  in  attempting  to  remove  the  plaintiff,  acting  as  Wagner's 
servant. 

The  general  principle  is  well  settled,  that  to  make  one  person  re- 
sponsible for  the  negligent  or  tortious  act  of  another,  the  relation  of 
principal  and  agent,  or  master  and  servant,  must  be  shown  to  have 
existed  at  the  time,  and  in  respect  to  the  transaction  between  the 
wrongdoer  and  the  person  sought  to  be  charged.     *     *     * 

The  business  of  running  drawing  room  cars  in  connection  with  or- 
dinary passenger  cars  has  become  one  of  the  common  incidents  of 
passenger  traffic  on  the  leading  railroads  of  the  country.  These  cars 
are  mingled  with  the  other  cars  of  the  company,  and  are  open  to  all 
who  desire  to  enter  them,  and  who  are  willing  to  pay  a  sum  in  addi- 
tion to  the  ordinary  fare,  for  the  special  accommodation  aft'orded  by 
them.  They  are  put  on  presumably  in  the  interest  of  the  road.  They 
form  a  part  of  the  train,  and  the  manner  of  conducting  the  business 
is  an  invitation  by  the  company  to  the  public  to  use  them,  upon  the 


Ch.  7)  SEVERAL   PERSONS    CONCERNED   IN   CARRIAGE.  249 

condition  of  paying  the  extra  compensation  charged.  Passengers 
cannot  know  what  private  or  special  arrangement,  if  any,  exists  be- 
tween the  company  and  third  persons,  under  which  this  part  of  the 
business  is  conducted,  and  they  have,  we  think,  in  taking  one  of  these 
cars,  a  right  to  assume  that  they  are  there  under  a  contract  with  the 
company,  and  that  the  servants  in  charge  of  the  drawing  room  cars 
are  its  servants.  Otherwise  there  would  be  two  separate  contracts  in 
the  case  of  each  passenger  in  these  cars,  one  with  the  company,  and 
one  with  Wagner.  Sucli  a  condition  of  things  would  involve  a  con- 
fusion of  rights  and  obligations,  and  divide  a  responsibility  which 
ought  to  be  single  and  definite.  Take  the  case  of  a  passenger  in  a 
drawing  room  car  who  should  be  burned  by  the  negligent  upsetting 
or  breaking  of  a  lamp  by  the  porter,  or  the  case  of  a  passenger  in  a 
sleeping  car,  injured  by  the  porter's  negligence.  Is  the  passenger,  in 
these  or  other  similar  cases  which  might  be  supposed,  to  be  turned 
over,  for  his  remedy,  against  Wagner,  on  the  ground  that  the  servant 
who  caused  the  injury  was  his  servant,  and  not  the  defendant's?  The 
public  interest,  and  due  protection  to  the  rights  of  passengers,  require 
that  the  railroad  company  which  is  exercising  the  franchise  of  opera- 
ting the  road  for  the  carriage  of  passengers,  should  be  charged  with 
and  responsible  for  the  management  of  the  train,  and  that  all  persons 
employed  thereon  should,  as  to  passengers,  be  deemed  to  be  the  serv- 
ants of  the  corporation.  *  *  * 
Judgment  affirmed.^ ^ 


PHELPS  V.  WINDSOR  STEA:\IB0AT  CO. 

(Supreme  Court  of  North  Carolina,  1902.    131  N.  C.  12.  42  S.  E.  335.) 
Clark,  J.     This  is  an  action  against  the  defendant  steamboat  com- 
pany,  alleging  that,  while  plaintiff  was   a  passenger   on   one   of   its 
boats,  by  negligence  in  the  loading  and  operation  thereof  the  boat 

15  Ace.  Pa.  Co.  v.  Roy.  102  U.  S.  451.  26  L.  Ed.  141  (ISSO).  defective  condi- 
tion of  Pullman  car  aiid  negligent  conduct  of  porter;  Airey  v.  Pullman  Co.. 
.50  La.  Ann.  648.  23  South.  512  (1898).  railroad  company  liable  for  porter's 
failure  to  awaken  passenger  in  time  to  get  out  at  destination :  New  York,  etc., 
R.  Co.  V.  Cromwell,  98  Ya.  227.  35  S.  E.  444.  49  L.  R.  A.  462.  81  Am.  St.  Rep. 
722  (1900).  failure  of  refrigerator  car  company  to  ice  car ;  Louisville  &  N. 
R.  Co.  V.  Church.  155  Ala-  329.  40  South.  4.57  (1908).  carelessness  of  porter  in- 
handling  table ;   also  cases  in  4  Dec.  Dig.  Carriers,  §  414. 

A  carrier  by  railroad  is  liable  for  negligence  in  the  conduct  of  its  trans- 
portation, though  the  negligent  person  is  a  servant  of  a  connecting  railroad. 
McElroy  v.  Nashua,  etc..  R.  Corp..  4  Cush.  (Mass.)  400,  50  Am.  Dec.  194  (1849). 
If  it  permits  another  company  to  use  its  tracks,  it  is  liable  to  its  own  pas- 
sengers for  injurv  caused  bv  the  negligence  of  that  company  in  running  its 
trains.  Railroad  Co.  v.  Barron.  5  Wall.  90,  18  L.  Ed.  591  (1866).  So  if  it  runs- 
its  trains  over  the  track  of  another  company.  Thomas  v.  Rhymney  Ry.  Co., 
L.  R.  6  Q.  B.  260  (1871) ;  Wabash,  etc.,  Ry.  Co.  v.  Peyton,  100  111.  534,  46  Am. 
Rep.  705  (ia83).  Contra:  Sprague  v.  Smith,  29  Yt.  421,  70  Am.  Dec.  424 
(1857).  See  Am.  Ex.  Co.  v.  Ogles,  36  Tex.  Civ.  App.  407,  81  S.  W.  1023  (1904), 
express  company  liable  for  injury  by  railroad's  negligence  to  drover  accompany- 
ing shipment  of  cattle. 


250  THE  carrier's  undertaking.  (Part  2 

was  capsized,  and  the  plaintiff  was  thrown  into  the  water  and  in- 
jured, and  her  baggage  was  also  damaged.  The  plaintiff  joins  in  the 
action  the  administratrix  of  one  John  W.  Branning,  upon  the  ground 
that  said  Branning  was  the  owner  of  said  vessel,  and  had  leased  it 
to  the  said  steamboat  company.  It  does  not  appear,  nor  is  it  alleged, 
that  he  had  any  connection  with  the  operation  of  said  vessel  by  the 
other  defendant. 

His  honor  properly  dismissed  the  action  as  to  Branning  upon  the 
ground  that  no  cause  of  action  is  stated  against  him.  Gulzoni  v.  Ty- 
ler, 64:  Cal.  334,  30  Pac.  981;  Shear.  &  R.  Xeg.  §  501.  In  Harden  v. 
Railroad  Co.,  129  N.  C.  351,  40  S.  E.  184,  55  L.  R.  A.  784,  85  Am. 
St.  Rep.  747,  and  the  cases  there  cited,  from  Aycock  v.  Railroad  Co., 
89  N.  C.  321,  down  to  and  inclusive  of  Perry  v.  Railroad  Co.,  129  N. 
C.  333,  40  S.  E.  191,  and  City  of  Raleigh  v.  North  Carolina  R.  Co., 

129  N.  C.  265,  40  S.  E.  -2  (affirmed  since  in  Smith  v.  Railroad  Co., 

130  N.  C.  344,  42  S.  E.  139),  the  lessor  is  held  liable,  notwithstanding 
the  lease,  because  a  railroad  company  (the  lessor  in  those  cases)  was 
a  quasi  public  corporation,  enjoying  the  use  of  the  right  of  eminent 
domain  to  take  private  property  by  condemnation  for  its  right  of  way 
"because  it  is  for  a  public  use,"  and  with  man}-  other  special  privileges 
and  rights  conferred  for  the  public  benefit,  and  it  could  not  be  allowed, 
by  merely  making  a  lease,  to  put  off  all  liability  for  the  manner  in 
which  its  duties  are  discharged,  while  receiving  the  full  benefit  for 
valuable  privileges  conferred  upon  it  in  the  shape  of  rental.^'' 

This  can  only  be  done,  as  the  authorities  cited  in  those  cases  show, 
when  the  legislative  power,  having  had  opportunity  to  look  into  the 
solvency  of  the  lessee,  has  not  only  authorized  the  lease,  but  has  ex- 
pressly released  the  lessor  company  from  further  responsibility.  Lo- 
gan V.  Railroad  Co.,  116  N.  C.  940,  21  S.  E.  959 ;  Anderson  v.  Rail- 
road Co.,  161  Mo.  411,  61  S.  W.  874;  and  numerous  other  cases  cited 
in  Harden  v.  Railroad  Co.,  supra.^'^  Were  it  otherwise,  an  insolvent 
lessee  could  operate  the  railroad  without  responsibility  to  the  public 
or  to  employes,  leaving  the  lessor,  the  original  corporation,  to  enjoy 
the  profits  of  its  privileges  without  any  corresponding  responsibility  in 
return. 

ic  \Miere  a  railroad  company  without  legislative  authority  has  permitted 
its  franchises  to  be  exercised  by  a  lessee,  it  has  frequently  been  held  liable 
for  bodily  injury  attributable  to  negligence  of  the  lessee  in  the  operation  of 
the  road  whether  the  person  injured  is  a  passenger,  Chicago,  etc.,  R.  Co.  v. 
Newell,  212  111.  332,  72  N.  E.  416  (1904) ;  or  a  stranger.  Muntz  v.  Algiers, 
etc..  Co.,  Ill  La.  423,  3.5  South.  624,  64  L.  R.  A.  222,  100  Am.  St.  Rep.  49.5 
(1903) ;  or,  in  some  states,  an  employe.  Chicago  &  G.  T.  Ry.  Co.  v.  Hart,  209 
111.  414,  70  N.  E.  654,  66  L.  R.  A.  75  (1904).  It  has  been  held  liable  for  the 
lessee's  refusal  to  carrv  goods.  Central,  etc.,  Rv.  Co.  v.  Morris,  6S  Tex.  49. 
3  S.  W.  457  (1SS7).  And  for  misdelivery,  Nat.  Blc.  v.  Atlanta,  etc.,  Rv.  Co.,  25 
S.  C.  216  (1S,S6) ;  Ga.  R.  Co.  v.  Haas,  127  Ga.  187.  56  S.  E.  313,  119  Am.  St. 
Rep.  327  (1906),  statutory.    See  58  Am.  St.  Rep.  147,  note. 

17  Ace.  Chicago,  etc.,  Ry.  Co.  v.  Hart.  209  111.  414,  70  N.  E.  654.  66  L.  R.  A. 
75  (1904).  Contra:  Moorshead  v.  United  Rvs.  Co.,  203  Mo.  121,  136-138,  15S- 
164,  96  S.  W.  261,  100  S.  W.  611  (1907),  and  cases  cited. 


Ch,  7)  SEVERAL   PERSONS    CONCERNED   IN   CARRIAGE.  251 

But  nothing  in  those  cases,  nor  in  the  reason  of  the  thing-,  appUes 
to  the  lessor  of  a  steamboat  which  has  received  no  special  privileges 
or  benefits  of  great  value  from  the  state,  and  who  indeed  in  this  in- 
stance was  a  private  individual.  No  liability  attaches  to  said  Bran- 
ning  because  he  was  president  of  said  company,  unless  it  were  alleged 
and  shown  that  the  lease  was  collusive  and  colorable  only,  and  a  sham 
to  avoid  personal  liability,  and  that  he  had  in  fact  leased  his  own  prop- 
erty to  himself.  But.  there  is  no  such  averment,  and  in  dismissing 
the  action  as  against  his  estate,  there  was  no  error. 


BELL  V.  INDL\NAPOLIS,  C.  &  L.  R.  CO. 

(Supreme  Court  of  Indiana,  1876.    53  Ind.  57.) 

Downey,  C.  J.^®  Suit  by  the  appellant  against  the  appellee  for  in- 
juries received  by  him  in  being  run  over  by  a  train  of  cars  of  the  de- 
fendant, on  or  about  the  7th  day  of  October,  1872.     *     *     * 

The  only  question  on  appeal  to  this  court  is  as  to  the  sufficiency  of 
the  first  paragraph  of  the  answer.  [This  paragraph  had  been  held 
good  on  demurrer.]  *  *  *  The  substance  of  the  paragraph  is 
that,  at  the  time  when  the  injury  was  inflicted  upon  the  plaintiff,  the 
railroad,  etc.,  were  in  the  hands  and  under  the  control  of  receivers  duly 
appointed  and  acting.  Is  this  a  sufficient  reason  why  the  corporation 
shall  not  be  held  liable  for  the  injury  done  the  plaintiff?  Counsel  for 
appellee  cite  and  rely  upon  Ohio  &  Miss.  R.  Co.  v.  Davis,  23  Ind.  553, 
85  Am.  Dec.  477.  The  authority  seems  to  us  to  be  decisive  of  the 
question,  and  to  sustain  the  ruling  of  the  court  below.     *     *     * 

The  judgment  is  affirmed,  with  costs. ^^ 


II.  Liability  of  the  Person  Delegated 

PACKARD  V.  TAYLOR. 

(Supreme  Court  of  Arkansas,  ISSO.    35  Ark.  402,  37  Am.  Rep.  27.) 

Eakin,  J.^"  Taylor,  Cleveland  &  Co.,  merchants  at  Pine  Bluff, 
brought  this  action  at  law  against  appellants,  Packard  &  Hammett, 

18  Parts  of  the  opinion  are  omitted. 

19  Compare  Grand  Tower  Co.  v.  Ullman,  89  111.  244  (1878).  railroad  operated 
by  trustees  for  bondholders. 

For  the  liability  of  a  receiver  as  a  common  carrier,  see  Nichols  v.  Smith, 
115  Mass.  332  (1874)  ;  McNulta  v.  Lockridge.  137  111.  270.  27  N.  E.  452.  31  Am. 
St  Rep  3G2  (1891).  For  the  railroad'sliability  after  the  receiver's  discharge, 
gee  Texas  &  P.  R.  Co.  v.  Huffman,  S3  Tex.  286,  IS  S.  W.  741  (1892). 

2  0  Part  of  the  opinion  is  omitted. 


252  THE  carrier's  rxDERTAKiNQ.  (Part  2 

owners  of  the  steamboat  Lizzie,  to  charge  them  for  damages  to  goods 
which  had  been  deHvered  to  said  steamer  at  Little  Rock,  to  be  trans- 
ported to  Pine  Bluff,  and  which  had  been  injured  by  the  sinking  of  the 
steamer  in  the  Arkansas  river,  before  her  departure  from  the  wharf. 
Bills  of  particulars,  describing  the  goods  were  filed,  and  the  damage 
sustained,  sufficiently  proved. 

The  defenses  set  up  by  the  answer  may  be  reduced  to  three : 

1.  That  there  was  a  nonjoinder  of  proper  parties  defendant,  inas- 
much as  a  third  party  not  sued  was  a  third  owner  of  the  vessel.  This 
may  be  disposed  of,  at  once,  in  passing. 

Although  independently  of  any  statute,  it  was  necessary  to  sue  all 
the  joint  owners  of  a  vessel  on  any  contract  made  respecting  it,  and  a 
nonjoinder  was  matter  in  abatement,  yet  this  has  been  positively  al- 
tered by  the  Code.  See  Gantt's  Digest,  ■§§  4479  and  4480.  Any  or 
all  may  now  be  sued. 

2.  That  defendants  made  no  contract  with  plaintiffs  for  the  car- 
riage of  the  goods,  but  received  them  from  the  St.  Louis  &  Iron 
]\Iountain  Railroad  Company,  to  be  carried  in  its  behalf,  and  to  which, 
alone,  they  are  responsible. 

3.  That  defendants  were  guilty  of  no  negligence,  nor  misconduct, 
but  that  the  accident  happened  solely  from  the  act  of  God,  and  the 
perils  of  the  river. 

Upon  trial  by  a  jury,  there  was  a  verdict  for  $750  damages,  and 
judgment  in  plaintiffs'  favor  accordingly.  There  was  a  motion  for  a 
new  trial,  which  was  overruled.  A  bill  of  exceptions  was  taken,  and 
an  appeal  granted.     *     *     * 

It  will  be  seen  that  a  portion  of  the  objections  to  the  instructions 
given  for  plaintiffs,  and  some  of  the  instructions  asked  by  defendants 
and  refused  by  the  court,  are  based  upon  this  assumed  principle,  that 
if  the  defendants  were  acting  only  under  a  contract  with  the  railroad 
to  carry,  for  the  corporation,  freights  which  it  had  undertaken  to  de- 
liver at  Pine  Bluff,  they  could  only  be  held  to  answer  at  the  suit  of 
the  railroad,  and  not  of  the  plaintiffs. 

But  it  must  not  be  lost  sight  of,  that  defendants  were,  themselves, 
common  carriers  between  Little  Rock  and  Pine  Bluff,  carrying  for  the 
railroad  only  as  a  part  of  their  general  business.  The  contract  had 
only  the  effect  of  a  contract  between  common  carriers,  for  increase  of 
custom  to  the  steamboat  line,  securing  it,  in  competition  with  other 
carriers  upon  the  same  route.  It  did  not  relieve  the  steamboat  own- 
ers from  any  of  the  general  responsibilities  of  common  carriers  with 
regard  to  goods  so  transferred  to  them  for  carriage  by  the  railroad. 
They  were  not  the  private  agents  of  the  railroad  company,  but  were 
carrying  on  a  general  business,  for  the  benefit  of  any  one  who  might 
employ  them.  They  are  bound  by  the  same  obligations  and  to  the 
same  persons  which  bind  successive  common  carriers,  receiving  goods 
from  each  other  and  transmitting  them  along  the  route  to  the  point 
of  ultimate  destination.     There  were  no  bills  of  lading  in  this  case. 


Ch.  7)  SEVERAL  PERSONS    CONCERNED   IN  CARRIAGE.  253 

restricting  or  defining  the  several  liabilities  of  the  railroad  and  the 
steamer  Lizzie.     The  general  law  must  govern. 

The  carrier's  obligation  to  keep  and  carry  safely  is  founded  on  the 
custom  of  the  realm,  at  common  law,  and  is  independent  of  contract, 
being  imposed  by  law  for  the  protection  of  the  owner,  and  founded 
upon  public  policy  and  commercial  necessity.  Chitty  on  Carriers,  34, 
35.  There  may  be  a  special  contract,  also,  not  indeed  superseding  that 
implied  by  law,  which  still  underlies  the  other,  but  restricting  or  modi- 
fying it  in  some  particulars,  in  a  manner  which  the  courts  may  not 
consider  unreasonable,  or  subversive  of  the  general  policy.  Id.  But 
in  the  absence  of  any  such  contract,  the  carrier  is  an  insurer — liable 
not  only  for  negligence,  but  even  for  inevitable  accident,  not  occasion- 
ed by  act  of  God.     In  this  case  there  is  no  question  of  public  enemies. 

We  are  cited  to  the  cases  of  Bank  of  Kentucky  v.  Adams  Express 
Co.  (1876)  93  U.  S.  174,  23  L.  Ed.  872,  and  Newell  v.  Smith  (1876) 
49  Vt.  255,  as  authority  to  sustain  the  position  that,  the  contract  of 
affreightment  being  with  the  railroad,  the  defendants  cannot  be  sued 
upon  it.  The  first  was  a  suit  against  an  express  company  to  recover 
the  value  of  a  package  of  money  which  defendant  had  received,  to  be 
delivered  to  plaintiff,  at  Louisville.  The  express  company  had  em- 
ployed the  services  of  a  railroad  to  transport  its  packages,  which  were 
accompanied  by  and  remained  under  the  control  of  its  messenger. 
An  accident  happened  to  the  road,  by  which  the  car  was  burned  and 
the  package  destroyed.  The  defense  set  up  was  that  the  express  com- 
pany, having  contracted  to  be  held  only  to  the  liability  of  a  common 
bailee  for  hire  in  case  of  loss  by  fire,  was  not  answerable  for  the 
negligence  of  the  employes  of  the  railroad,  over  w^iich  it  had  no  con- 
trol ;  and  so  it  was  held  by  the  Circuit  Court.  This  was  reversed,  on 
appeal  to  the  Supreme  Court  of  the  United  States ;  the  latter  tribunal 
liolding  that  the  railroad  company  was  the  agent  of  the  express  com- 
pany, and  that  the  latter  must  answer  for  the  negligence  of  the  for- 
mer. •  The  question  of  the  liability  of  the  railroad  company  to  the 
consignees  of  the  package  would  be  analogous  to  this,  but  it  did  not 
arise.  The  court,  however,  arguendo,  took  this  liability  for  granted, 
upon  the  authority  of  New  Jersey  Steam  Navigation  Co.  v.  Merchants' 
Bank  (1848)  6  How.  344,  12  L.  Ed.  465,  and  say:  "Granting  that  the 
plaintiffs  can  sue  the  railroad  company  for  the  loss  of  the  packages 
through  its  fault,  their  right  comes  through  their  contract  between  it 
and  defendants.  They  must  claim  through  that.  Had  the  packages 
been  delivered  to  the  charge  of  the  railroad  company,  without  any  stip- 
ulation for  exemption  from  the  ordinary  liability  of  carriers,  it  would 
have  been  an  insurer  both  to  the  express  company-^  and  to  the  plain- 
tiffs."   93  U.  S.  184,  23  L.  Ed.  872. 


21  See  Powbatan  Steamboat  Co.  v.  Appomattox  R.  Co.,  24  How.  247,  16  L. 
Ed.  6S2  (ISGO) ;  Vermont  &  Mass.  R.  Co.  v.  Fitchburg  R.  Co.,  14  Allen  (Mass.) 
462,  02  Am.  Dec.  785  (1867) ;   Little  v.  B.  &  M.  R.  R.,  66  Me.  239  (1876). 


254  THE  carrier's  undertaking.  (Part  2 

In  the  case  here  before  us,  the  goods  were  taken  by  the  St.  Louis, 
Iron  Mountain  &  Southern  Railway  Company,  without  any  express 
contract,  to  be  carried  to  Pine  Bluff,  and  were  delivered  to  the  de- 
fendants at  Little  Rock,  as  common  carriers,  to  be  transported  to  their 
destination,  without  any  stipulation  for  exemption  from  the  ordinary 
liability  of  carriers.  According  to  the  principle  above  announced,  the 
owners  of  the  Lizzie  would  thus  become  insurers,  both  to  the  St. 
Louis,  Iron  Mountain  &  Southern  Railway  Company,  and  to  the  plain- 
tiffs. It  is  true,  however,  that  in  93  U.  S.  184,  23  L.  Ed.  873,  the  case 
is  stated  hypothetically. 

The  case  in  49  Vt.  255,  supra,  goes  only  to  fix  the  liabilities  of  a 
carrier  who  expressly  contracts  to  deliver  goods  at  a  destination  be- 
yond the  terminus  of  his  own  road  for  the  negligence  of  any  connect- 
ing road  in  the  line  of  transportation. 

This  court  has  held  that  this  liability  for  loss  by  a  connecting  car- 
rier may  be  repelled  by  express  stipulation.  Taylor  v.  Little  Rock,  \[. 
R.  &  T.  Railroad  Co.  (1877)  32  Ark.  393,  29  Am.  Rep.  1.  But  neither 
the  latter  case  nor  the  case  from  Vermont  conflicts  with  the  principle 
announced  in  6  How.  344,  12  L.  Ed.  465,  supra,  that  the  consignee 
of  goods  may  maintain  an  action  against  the  carrier  in  whose  hands 
the  loss  happens,  through  the  rights  of  the  carrier  originally  bound. 

Although  the  English  courts  have  adopted  the  principle  that  a  car- 
rier who  receives  goods  to  be  conveyed  to  a  point  beyond  the  terminus 
of  his  own  route,  is  liable  for  losses  whilst  in  the  hands  of  connecting 
carriers,  and  have  even  held  that  in  such  cases  the  subsequent  carrier 
cannot  be  held  liable  by  the  owner,  yet  the  American  courts  have  taken  a 
different  view.  See  the  question  discussed  and  authorities  cited  in 
Redfield  on  Railways,  §  162,  and  notes. 

1  have  not  met  with  any  American  case  absolving  the  connecting 
carrier  from  liability  to  the  consignee,  although  the  contract  may  have 
been  made  with  a  preceding  one  on  the  route. 

There  are  some  cases  which  hold  the  connecting  carriers  entitled 
to  all  exemptions  and  qualifications  which  the  original  carrier  had 
secured  for  itself  by  special  contract,  thus  limiting  its  common-law 
Hability.^^  Such  was  the  case  of  Manhattan  Oil  Co.  v.  Camden  & 
Amboy  R.  R.  (1868)  52  Barb.  (N.  Y.)  72;  but  they  go  no  further. 
Even  in  England  the  principle  seems  confined  to  cases  where  the  first 
company  has  expressly  contracted  to  deliver  at  the  point  of  destina- 
tion ;  and  some  learned  judges  reject  it  altogether.  Redfield,  supra. 
*     *     * 

Affirm.23 

2  2  See  Mears  v.  N.  T.,  etc.,  R.  Co.,  75  Conn.  171,  .52  Atl.  610,  .'ifi  L.  R.  A. 
884,  96  Am.  St.  Rep.  192  (1902) ;  Pittsburg,  etc..  Ry.  Co.  v.  Viers,  113  Kv.  .o26, 
68  S.  W.  469  (1902) ;  Kiflf  v.  Atchison  R.  Co.,  32  Kan.  263,  4  Pac.  401  (1884). 
Compare  Babcock  v.  Lal^e  Shore  R.  Co.,  49  N.  Y.  491  (1872). 

2  3  See,  also,  Halliday  v.  St.  Louis,  etc.,  Ry.  Co.,  74  Mo.  159,  41  Am.  Rep.  309 
(1881);  U.  S.  Mail  Line  Co.  v.  Carrollton,  etc.,  Co.,  101  Ky.  658,  42  S.  W.  342 
(1897) ;   Schopman  v.  Boston  &  W.  R.  Corp.,  9  Cush.  (Mass.)  24,  29,  55  Am.  Dec. 


Ch.  7)       SEVERAL  PERSONS  CONCERNED  IN  CARRIAGE.  255 


SECTION  3.— PRESUMPTION  AS  TO  CIRCUMSTANCES  OF 

DAMAGE 


MOORE  V.  NEW  YORK,  N.  H.  &  H.  R.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1899.    173  Mass.  335,  o3  N.  E. 
81 G,  73  Am.  St.  Rep.  298.) 

Holmes,  J.  This  is  an  action  by  a  passenger  to  recover  for  damage 
to  her  luggage,  suffered  somewhere  in  the  course  of  a  passage  from 
Charleston,  Tenn.,  to  Boston.  The  passage  was  over  six  connecting 
railroads.  It  does  not  appear  where  the  damage  was  done,  and  the 
plaintiff  seeks  to  recover  upon  a  presumption  that  the  accident  hap- 
pened upon  the  last  road. 

The  so-called  "presumption"  was  started  and  justified  as  a  true  pre- 
sumption of  fact  that  goods  shown  to  have  been  delivered  in  good 
condition  remain  so  until  they  are  shown  to  be  in  bad  condition, 
which  happens  only  on  their  delivery.  But  it  was  much  fortified 
by  the  argument  that  it  was  a  rule  of  convenience,  if  not  of  ne- 
cessity, like  the  rule  requiring  a  party  who  relies  upon  a  license  to 
show  it.  1  Greenl.  Ev.  §  ?9 ;  Pub.  St.  c.  214,  §  12.  As  we,  in  common 
with  many  other  American  courts,  hold  the  first  carrier  not  answerable 
for  the  whole  transit,  and  not  subject  to  an  adverse  presumption 
(Farmington  Mercantile  Co.  v.  Chicago,  B.  &  Q.  R.  Co.,  166  Mass. 
154,  44  N.  E.  131),  it  is  almost  necessary  to  call  on  the  last  carrier  to 
explain  the  loss  if  the  owner  of  the  goods  is  to  have  any  remedy  at 
all.  To  do  so  is  not  unjust,  since  whatever  means  of  information  there 
may  be  are  much  more  at  the  carrier's  command  than  at  that  of  a  pri- 
vate person.  These  considerations  have  led  most  of  the  American 
courts  that  have  had  to  deal  with  the  question  to  hold  that  the  pre- 
sumption exists.  Smith  v.  Railroad  Co.,  43  Barb.  (N.  Y.)  225,  228, 
229,  affirmed  in  41  N.  Y.  620 ;  Laughlin  v.  Railway  Co.,  28  Wis.  204, 
9  Am.  Rep.  493;  Railroad  Co.  v.  Holloway,  9  Baxt.  (Tenn.)  188,  191; 
Dixon  V.  Railroad  Co..  74  N.  C.  538 ;  Leo  v.  Railway  Co.,  30  Minn. 
438,  15  N.  W.  872 ;  Railway  Co.  v.  Culver,  75  Ala.  587,  593,  51  Am. 
Rep.  483;   Beard  v.  Railway  Co.,  79  Iowa,  518,  44  N.  W.  800,  7  L.  R. 

41  (1851),  connecting  railroad  held  liable  as  a  common  carrier  to  through  pas- 
senger, with  which  compare  Keep  v.  Union,  etc.,  Co.  (C.  C.)  9  Fed.  625  (1881), 
where  a  terminal  company  drawing  a  train  to  the  station  was  held  not  liable 
as  a  common  carrier  to  a  through  pa.«senger. 

Contra:  So.  Ex.  Co.  v.  Shea,  38  Ga.  519  (1SG8).  changed  by  statute;  Mvt- 
ton  V.  Midland  Ry.  Co.,  4  H.  &  N.  615  (1859) ;  Coxou  v.  Gt.  Western  Ry.  Co., 
5  H.  &  N.  274  (1860). 

For  damage  not  shown  to  have  occurred  upon  its  line,  a  carrier  like  that 
in  the  principal  case  is  not  liable  to  the  shipper.  Aigen  v.  B.  &  M.  R.,  132 
Mass.  423  (1882).  Though  it  has  agreed  with  the  initial  carrier  to  divide  dam- 
age that  cannot  be  traced.  Ches.  &  Ohio  R.  Co.  v.  Stock,  104  Ya.  97,  51  S.  E. 
161  (190^). 


■256  THE  carrier's  undertaking.  (Part  2 

A.  280,  18  Am.  St.  Rep.  381 ;  Railway  Co.  v.  Harris,  26  Fla.  148,  7 
South.  544,  23  Am.  St.  Rep.  551 ;  Faison  v.  Railway  Co.,  69  Miss.  569, 
13  South.  37,  30  Am.  St.  Rep.  577;  Forrester  v.  Railroad  Co.,  92  Ga. 
699,  19  N.  E.  811. 

In  the  opinion  of  the  court  the  weight  of  argument  and  authority  is 
on  that  side.  Mr.  Justice  Lathrop  and  I  have  not  been  able  to  free 
our  minds  from  doubt,  because  we  are  not  fully  satisfied  that  the  court 
has  not  committed  itself  to  a  different  doctrine.  Still  it  has  not  dealt 
with  it  in  terms.  In  Darling  v.  Railroad  Corp.,  11  Allen,  295,  the  only 
question  discussed  was  a  question  of  contract.  In  Swetland  v.  Rail- 
road Co.,  102  Alass.  276,  the  question  was  as  to  frozen  apples.  It  ap- 
peared that  the  weather  had  been  very  cold  before  delivery  to  the 
•defendant.  The  presumption  was  not  mentioned.  These  are  the  two 
nearest  cases. 

Judgment  for  the  plaintiff.-* 

24  See,  further.  101  Am.  St.  Rep.  392.  note;  Smith  v.  N.  Y.  Cent.  R.  Co., 
43  Barb.  (N.  Y.)  225  (1804) ;  Lauffhliu  v.  Chicago  &  X.  W.  Ry.  Co..  28  Wis.  204, 
9  Am.  Rep.  493  (1871).  boxes  rifled;  Gulf.  etc..  Ry.  Co.  v.  Jones,  1  Ind.  Ter. 
354,  37  S.  W.  208  (1896),  carrier  liable  by  bill  of  lading  only  for  damage  proved 
to  have  happened  on  its  own  line ;  Willett  v.  So.  Ry.  Co.,  G6  S.  C.  477,  45  S.  E. 
D3  (1903).  first  carrier  a  citv  expressman. 

Contra:  Rolfe  v.  Lake  "Shore,  etc.,  Rv.  Co.,  144  Mich.  1G9,  107  N,  W.  899, 
115  Am.   St.  Rep.  3,S8  (190G). 

The  presumption  does  not  arise  unless  there  is  proof  of  the  condition  of  the 
goods  when  shipped.  In  Lake  Erie  &  W.  Ry.  Co.  v.  Oakes,  11  111.  App.  489 
(1882),  McCulloeh,  J.,  said:  "It  devolves  upon  the  plaintiff  to  show  by  a  pre- 
ponderance of  evidence  that  the  goods  were  injured  while  in  defendant's 
hands.  *  *  *  But  it  is  not  shown  by  the  evidence  over  what  road  the.v 
were  first  shipped,  nor  in  what  condition  they  were  when  delivered  to  that 
road.  The  only  evidence  touching  their  condition  is  that  furnished  by  the 
wife  of  appellee,  who  testifies  they  were  in  good  condition  when  packed  at  her 
house  before  shipment.  This  is  too  remote.  To  charge  appellant  in  any  event 
it  must  at  least  appear  they  were  in  good  condition  when  delivered  to  the 
first  carrier  on  the  route." 

The  presumption  does  not  arise  unless  there  is  proof  that  the  shipment 
came  into  the  defendant  carrier's  possession.  Kessler  v.  N.  Y,  C.  R.  Co.,  61 
N.  Y.  5.38  (1875) ;  Atchison,  etc.,  Co.  v.  Roach.  .35  Kan.  740,  12  Pae.  93,  57  Am. 
Rep.  199  (18S6).  But  if  a  carrier  delivers  only  part  of  a  shipment,  the  pre- 
sumption is  that  the  loss  of  the  rest  occurred  on  his  line.  Faison  v.  Ala.,  etc., 
Rv.  Co..  69  Miss.  569,  13  South.  37,  30  Am.  St.  Rep.  .577  (1891)  ;  Owvn  Harper 
Co.  V.  Carolina  R.  Co.,  128  N.  C.  280.  38  S.  E.  894.  ,83  Am.  St.  Rep.  675  (1901) ; 
St.  Louis  S.  W.  Ry.  Co.  v.  Birdwell.  72  Ark.  502,  82  S.  W.  835  (1904).  It 
does  not  relieve  the  last  carrier  to  show  tliat  part  of  the  loss  or  damage  oc- 
curred before  the  goods  came  to  him.  without  showing  what  part.  Railway 
Co.  V.  Edloff,  89  Tex.  454,  34  S.  W.  414,  35  S.  W.  144  (1896).  The  presumption 
may  be  invoked  against  any  carrier  in  the  series  in  whose  liands  the  goods 
are  shown  to  have  been  in  damaged  condition.  Gulf,  etc.,  Ry.  Co.  v.  Pitts, 
37  Tex.  Civ.  App.  212.  83  S.  W.  727  (1904).  Or,  it  has  been  held,  In  sound  con- 
dition. Meredith  v.  R.  Co.,  137  N.  C.  478,  50  S.  E.  1  (1905),  and  cases  there 
cited. 

In  some  states  the  presumption  against  the  last  carrier  is  by  statute  made 
TUider  certain  circumstances  conclusive. 

See  So.  Ry.  Co.  v.  Waters,  125  Ga.  .520,  54  S.  E.  620  (1906);  Vincent  v.  Yazoo, 
etc.,  Ry.  Co.,  114  La.  1021.  38  South.  816  (1905) ;  Russell  v.  Mobile  &  O.  R. 
Co..  87  Miss.  806,  40  South.  1015  (1906);  Willett  v.  So.  Ry.  Co.,  66  S.  C.  477, 
45  S.  E.  93  (1903) ;  Goldstein  v.  Sherman,  etc.,  Ry.  Co.,  25  Tex.  Civ.  App.  365, 
61  S.  W.  336  (1901). 


PART  III 

THE  OBLIGATION  OF  THE  SHIPPER 


CHAPTER  I 
FREIGHT 


SECTION  1.— WHO  IS  LIABLE  FOR  FREIGHT 


NICHOLLS  &  MORE. 

(Court  of  Common  Pleas,  1661.    1  Sid.  36.) 

The  defendant  being  a  water  carrier  between  Hull  and  London,  the 
plaintiff  delivers  goods  to  him  at  York  to  carry  them  from  Hull  to 
London,  and  the  goods  being  lost  the  plaintiff  brings  action  upon  the 
case  and  found  for  him,  and  it  was  moved  in  arrest  of  judgment  (1) 
that  he  did  not  agree  with  the  carrier  to  carry  them  for  a  sum  certain ; 
(2)  the  agreement  was  made  for  their  carriage  between  Hull  and  Lon- 
don and  the  defendant  had  not  taken  upon  himself  to  convey  them 
from  York  to  Hull. 

But  this  notwithstanding,  by  The;  Whole  Court. — The  defendant 
shall  be  charged  upon  his  general  receipt  at  York  in  accordance  with 
Southcote's  Case  [-i  Coke,  84],  though  he  says  nothing  about  carrying 
them  to  Hull.  And  as  to  the  other  matter,  that  they  have  not  agreed 
for  a  sum  certain  for  carriage  between  Hull  and  London  it  was  said  by 
the  court  that  it  is  not  necessary,  for  the  carrier  may  declare  upon  a 
quantum  meruit  like  a  tailor,  etc.  And  therefore  he  shall  be  held  lia- 
ble, and  judgment  for  the  plaintiff.^ 

1  Ace.  Gumm  v.  Tyrie,  4  B.  &  S.  GSO  (1864).  "shall  pay  for  freight."  See  2 
Harvard  Law  Rev.  59.  For  freight  ou  articles  not  within  the  contract  of 
carriage,  see  ante,  p.  99,  note. 

The  interstate  commerce  act  provides  that  it  shall  be  unlawful  for  a  car- 
rier subject  to  its  provisions  to  charge,  demand,  or  receive  a  different  rate 
from  that  published  in  his  schetlule.  Such  a  carrier  may  enforce  payment  of 
the  schedule  rate,  though  he  has  agreed  with  a  shipper  ignorant  of  tiie  sched- 
ule to  carry  for  less.  Texas  &  P.  R.  Co.  v.  Mugg.  202  U.  S.  242.  26  Sup.  Ct. 
628.  50  L.  Ed.  1011  (1906).  For  state  statutes  similarly  construed,  see  Hauri- 
gan  V.  Chicago,  etc.,  Co.,  80  Neb.  139,  117  X.  W.  100  (1908).  Under  the  Illinois 
statute,  which  imposes  a  fine  for  unjust  discrimination,  a  railroad  which 
Gkeen  Caer.— 17  (257) 


258  THE   OBLIGATION   OF   THE   SHirPER.  (Part  3 

WOOSTER  V.  TARR. 
(Supreme  Judicial  Court  of  Massachusetts,  1SG4.     8  Allen,  270.) 

Contract  to  recover  for  the  carriage  of  mackerel  from  Halifax  to 
Boston. 

It  was  agreed  in  the  superior  court  that  the  defendants  shipped 
the  mackerel  at  Halifax,  upon  a  vessel  of  which  the  plaintiffs  were 
part  owners,  said  Wooster  being  master,  under  a  bill  of  lading  in  the 
usual  form,  to  be  delivered  at  Boston  "unto  Messrs.  R.  A.  Howes  & 
Co.,  or  to  their  assigns,  he  or  they  paying  freight  for  said  goods," 
etc.  On  the  arrival  of  the  vessel  at  Boston,  Wooster  was  informed  by 
Howes  &  Co.  that  the  mackerel  had  been  sold  "to  arrive,"'  to  a  person 
to  whom  they  requested  him  to  deliver  them.  The  mackerel  were 
accordingly  delivered,  and  payment  demanded  of  Howes  &  Co.,  but 
refused.  Howes  &  Co.  were  then  and  still  are  insolvent.  The  mack- 
erel, at  the  time  of  their  delivery  on  board  the  vessel,  had  been  purchas- 
ed and  paid  for  by  the  defendants  for  and  on  account  of  Howes  & 
Co.,  at  whose  risk  they  were  after  shipment;  but  this  fact  was  un- 
known to  the  plaintiffs.  -The  mackerel  were  entered  at  the  custom 
house  in  Halifax  in  the  name  of  the  defendants. 

Upon  these  facts  judgment  was  rendered  for  the  plaintiffs,  and  the 
defendants  appealed  to  this  'COurt. 

BiGELOW,  C.  J.  The  question  raised  in  this  case  is  very  fully  dis- 
cussed in  Blanchard  v.  Page,  8  Gray,  281,  286,  290-295.  It  is  there 
stated  to  be  the  settled  doctrine  that  a  bill  of  lading  is  a  written  simple 
contract  between  a  shipper  of  goods  and  the  shipowner;  the  latter  to 
carry  the  goods,  and  the  former  to  pay  the  stipulated  compensation 
when  the  service  is  performed.  Of  the  correctness  of  this  statement 
there  can  be  no  doubt.  The  shipper  or  consignor,  whether  the  owner 
of  the  goods  shipped  or  not,  is  the  party  with  whom  the  owner  or  mas- 
ter enters  into  the  contract  of  affreightment.  It  is  he  that  makes  the 
bailment  of  the  goods  to  be  carried,  and,  as  the  bailor,  he  is  liable  for 
the  compensation  to  be  paid  therefor.  The  dictum  of  Bayley,  J.,  in 
Moorsom  v.  Kymer,  2  M.  &  S.  31§,  subsequently  repeated  by  Lord 
Tenterden  in  Drew  v.  Bird,  Mood.  &  Malk.  156,  that  in  the  absence 
of  an  express  contract  by  the  shipper  to  pay  freight,  when  the  goods 
are  by  the  bill  of  lading  to  be  delivered  on  payment  of  freight  by  the 
consignee,  no  recourse  can  be  had  for  the  price  of  the  carriage  to  the 
shipper,  has  been  distinctly  repudiated,  and  cannot  be  regarded  as  a 
correct  statement  of  the  law.  Sanders  v.  V"an  Zeller,  4  Q.  B.  260,  284 ; 
Maclachlan  on  Shipping,  426. 

It  is  contended,  on  the  part  of  the  defendants,  that  the  omission  of 
the  master  to  collect  the  freight  of  the  consignees  of  the  cargo  or  their 

agrees  to  carry  for  an  unjustly  favored  shipper  at  a  low  rate  can  collect  only 
the  rate  agi-eed.  111.  Cent.  R.  Co.  v.  Seitz,  214  111.  350,  73  N.  E.  585,  105  Am. 
St.  Rep.  108  (1905). 


Ch.  1)  FREIGHT.  259 

assigns,  under  the  circumstances  stated,  was  a  breach  of  good  faith 
towards  the  shippers,  which  operates  as  an  estoppel  on  him  and  the 
other  owners  of  the  vessel,  whose  agent  he  was,  to  demand  the  freight 
money  of  the  defendants.  But  there  are  no  facts  on  which  to  found 
an  allegation  of  bad  faith  against  the  master.  He  did  no  act  con- 
trary to  his  contract  or  inconsistent  with  his  duty  towards  the  ship- 
pers. It  is  true  that  he  omitted  to  enforce  his  lien  on  the  cargo  for 
the  freight,  by  delivering  it  without  insisting  on  payment  thereof  by 
the  consignees.  This  was  no  violation  of  any  obligation  which  he  had 
assumed  towards  the  defendants  as  shippers  of  the  cargo.  A  master 
is  not  bound  at  his  peril  to  enforce  payment  of  freight  from  the  con- 
signees. The  usual  clause  in  bills  of  lading  that  the  cargo  is  to  be  de- 
livered to  the  person  named  or  his  assignees,  "he  or  they  paying 
freight,"  is  only  inserted  as  a  recognition  or  assertion  of  the  right  of 
the  master  to  retain  the  goods  carried  until  his  lien  is  satisfied  by  pay- 
ment of  the  freight,  but  it  imposes  no  obligation  on  him  to  insist  on 
payment  before  delivery  of  the  cargo.  If  he  sees  fit  to  waive  his  right 
of  lien  and  to  deliver  the  goods  without  payment  of  the  freight,  his 
right  to  resort  to  the  shipper  for  compensation  still  remains.  Shepard 
v.  De  Bernales,  13  East,  565 ;  Domett  v.  Beckford,  5  B.  &  Ad.  521, 
525  ;  Christy  v.  Row,  1  Taunt.  300.  Although  the  receipt  of  the  cargo 
under  a  bill  of  lading  in  the  usual  form  is  evidence  from  which  a  con- 
tract to  pay  the  freight  money  to  the  master  or  owner  may  be  infer- 
red, this  is  only  a  cumulative  or  additional  remedy,  which  does  not 
take  away  or  impair  the  right  to  resort  to  the  shipper  on  the  original 
contract  of  bailment  for  the  compensation  due  for  the  carriage  of  the 
goods. 

Judgment  for  the  plaintiffs.^ 


CENTRAL  R.  CO.  OF  NEW  JERSEY  v.  MACCARTNEY. 

(Supreme  Court  of  New  Jersey,  1902.    68  N.  J.  Law,  16.5.  52  Atl.  575.) 

Certiorari  to  review  a  judgment  for  plaintiff.  On  the  trial  below 
the  following  facts  were  found  by  the  court :  The  Seaboard  Company 
at  Brooklyn  shipped  to  the  defendants  at  points  in  New  Jersey  a  quan- 
tity of  railroad  ties  which  defendants  had  purchased  of  them.  The  ties 
were  carried  on  lighters  across  the  harbor  and  then  transferred  to 
cars  of  the  plaintiff  railroad  company,  which  delivered  them  to  defend- 
ants at  destination,  at  the  same  time  presenting  bills  for  freight  and 
lighterage    charges   which    defendants    several    days    afterward   paid. 

2  Ace.  Collins  v.  Union  Tr.  Co..  10  Watts  (Pa.)  384  (1840).  And  see  Spencer 
V.  White.  23  N.  C.  236  (1840) ;  Gilson  v.  Madden.  1  Laus.  (X.  Y.)  172  (1SG9), 
freiiilit  tendered  by  consignee  refused  by  carrier.  But  see  Thomas  v.  Snider, 
39  Pa.  317  (ISOI).  Compare  Uuiou  R.  Co.  v.  Winliley,  159  Mass.  133,  34  N.  E. 
91,  38  Am.  St.  Rep.  398  (1893). 


260  THE   OBLIGATION   OF   THE   SHIPPER.  (Part  3 

Subsequently  plaintiff  found  that  by  a  mistake  of  its  clerk  the  lighter 
age  charges  as  entered  in  the  bills  were  $1G2  smaller  than  they  should 
have  been.  Plaintiff  paid  the  lighterman  his  charges  in  full,  demanded 
of  defendants  so  much  of  those  charges  as  defendants  had  not  already 
paid,  and  on  defendants'  refusal  brought  this  action  therefor.  There 
seems  to  have  been  an  understanding  between  the  shipper  and  the 
plaintiff,  based  on  usage,  that  the  purchaser  was  to  pay  the  carrier's 
charges  and  might  settle  for  them  with  his  seller  by  deducting  their 
amount  from  the  purchase  price.  It  did  not  distinctly  appear  whether 
or  not  defendants  knew  this.     Further  facts  appear  in  the  opinion. 

PiTXEY,  J.^  *  •  *  *  jj^  ^\yQ  absence  of  some  agreement  on  the 
part  of  defendants,  either  express  or  implied,  there  is,  in  our  opinion, 
nothing  to  support  the  present  action.  The  mere  existence  of  the  re- 
lation of  carrier  and  consignee  is  not  enough  to  establish  an  obligation 
upon  the  latter  to  pay  the  transportation  charges.  Prima  facie,  the 
consignor  of  freight,  who  contracts  with  the  carrier  for  its  shipment, 
is  liable  to  pay  the  charges  of  transportation.  It  is  by  him  that  the 
engagement  is  made  with  the  carrier.  It  is  for  him  that  the  service 
is  performed.  The  question  of  his  liability,  however,  is  in  each  in- 
stance dependent  upon  the  terms  of  the  agreement  actually  made  be- 
tween him  and  the  carrier.  Whether  the  consignor  is  shipping  for  his 
own  account,  or  as  agent  of  another;  whether  he  is  owner  of  the 
goods ;  whether  by  the  agreement  between  him  and  the  consignee  the 
title  to  the  goods  passes  to  the  latter  at  the  time  of  delivery  to  the  car- 
rier, or  upon  delivery  to  the  consignee — these  and  other  like  circum- 
stances have  been  discussed  in  the  adjudicated  cases  as  evidential  upon 
the  question  of  consignor's  liability  to  the  carrier  for  the  freight. 

In  the  present  case  the  facts  leave  no  room  to  doubt  the  consignor's 
original  liability.  Not  only  did  the  Seaboard  Company,  through  its 
agent,  engage  the  transportation,  and  agree  with  the  plaintiff's  agent 
about  the  terms  thereof ;  not  only  was  this  done  without  the  knowl- 
edge or  participation  of  the  defendants ;  but  by  the  very  terms  of  sale 
the  ownership  of  the  ties  was  to  remain  in  the  consignor  until  their 
delivery  at  Dunellen  and  Bound  Brook,  respectively;  and  of  this  the 
carrier  had  notice,  as  will  be  shown  presently.  The  freight  charges 
being  unpaid  in  advance  by  the  consignor,  the  carrier  was,  of  course, 
entitled  to  a  lien  upon  the  goods  for  the  amount  of  the  freight.  It  was 
not  obliged  to  make  delivery  to  the  consignees  until  these  charges 
were  paid.  In  such  a  case,  if  the  lien  is  waived,  and  the  goods  deliv- 
ered to  the  consignee,  accompanied  w-ith  notice  to  him  of  the  amount 
of  the  charges  remaining  unpaid,  the  decisions  hold  that  acceptance 
of  the  goods  under  such  circumstances  either  amounts  to  an  agree- 
ment to  pay  the  freight,  or  at  least  is  evidence  from  which  such  an 
agreement  may  properly  be  inferred.      But  acceptance  by  the  con- 

3  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion  are 
omitted. 


Ch.   1)  FREIGHT.  261 

signee,  although  accompanied  by  an  undertaking  to  pay  the  charges, 
does  not  discharge  the  consignor  from  HabiHty  to  the  carrier.  The  two 
contracts  are  held  to  be  independent,  and  not  inconsistent  one  with 
the  other. 

The  above  propositions,  so  far  as  they  affect  the  consignor's  liability, 
were  fully  discussed  in  the  case  of  Grant  v.  Wood,  21  N.  J.  Law,  292, 
47  Am.  Dec.  162.  Upon  the  general  question  the  following  additional 
decisions  may  be  referred  to :  Cock  v.  Taylor,  13  East,  399  ;  Shepard 
V.  De  Bernales,  13  East,  565 ;  Wilson  v.  Kymer,  1  Maule  &  S.  157 ; 
Sanders  v.  A'an  Zeller,  4  Adol.  &  E.  (X.  S.)  260;  Wegener  v.  Smith, 
15  C.  B.  (80  E.  C.  E.)  285;  Barker  v.  Havens,  17  Johns.  (N.  Y.)  234, 
8  Am.  Dec.  393 ;  Merrick  v.  Gordon,  20  N.  Y.  93-97 ;  Davis  v.  Patti- 
son,  24  N.  Y.  317 ;  Dart  v.  Ensign,  47  N.  Y.  619 ;  Davison  v.  Bank, 
57  N.  Y.  81;  Elwell  v.  Skiddy,  77  N.  Y.  282;  Railroad  Co.  v.  Whit- 
cher,  1  Allen  (Mass.)  497;  Finn  v.  Railroad  Corp.,  112  Mass.  524, 
17  Am.  Rep.  128  [ante,  p.  176]  ;  Railroad  Co.  v.  Wilder,  137  Mass. 
536;  Railroad  Co.  v.  Winkley,  159  Mass.  133,  34  N.  E.  91,  38  Am. 
St.  Rep.  398;  55  Am.  &  Eng.  R.  Cas.  695. 

Upon  reason,  as  well  as  by  the  great  weight  of  authority,  it  seems 
entirely  clear  that  the  liability  of  the  consignee  to  pay  to  the  carrier 
the  freight  upon  the  goods  transported,  in  a  case  such  as  is  here  pre- 
sented, depends  not  upon  any  general  legal  duty  resting  upon  a  con- 
signee simply  because  he  is  consignee,  but  upon  some  agreement  or 
undertaking  made  by  the  consignee.  Where  one  accepts  delivery  of 
goods  from  a  common  carrier,  receiving  at  the  same  time  a  statement 
plainly  setting  forth  the  amount  of  freight  charges  thereon,  with 
knowledge  that  the  carrier  is  giving  up  for  the  benefit  of  the  consignee 
a  lien  upon  the  goods  for  the  amount  so  stated,  such  conduct  by  the 
consignee  is,  of  course,  cogent  evidence,  and,  standing  unexplained 
and  uncontradicted,  is  sufificient  evidence  of  an  implied  promise  to  pay 
the  amount  of  the  stated  charges.  Such  an  undertaking  was  undoubt- 
edly made  by  the  defendants  in  this  case.  That  undertaking  has  been 
performed  by  them.  But  we  fail  to  see  in  the  facts,  as  certified  to  us 
by  the  trial  court,  anything  to  support  a  finding  that  the  defendants, 
by  anything  that  transpired  at  or  after  the  delivery  of  the  ties,  under- 
took and  promised  to  pay  freight  charges  indefinite  in  amount,  or  any 
sum  beyond  that  which  was  stated  on  the  bills  as  rendered.  If  the 
plaintiff,  the  railroad  company,  instead  of  waiving  its  lien,  had  insisted 
upon  retaining  the  ties  until  payment  of  the  freight,  at  the  same  time 
rendering  to  defendants  the  freight  bills  as  in  fact  they  were  rendered, 
and  if  the  defendants  had  thereupon  paid  the  bills  in  order  to  secure 
the  ties,  could  a  further  liability  be  imposed  upon  them  simply  on  the 
ground  that  the  bills,  as  rendered,  did  not  include  the  entire  charges? 
We  think  not.  In  such  case  the  plaintiff  would  have  been  left  to  its 
action  against  the  consignor,  as  the  party  on  whose  engagement  the 
service  was  performed. 


262  THE   OBLIGATION   OF  THE   SHIPPER.  (Part  3 

But,  secondly,  whether  the  defendants  were  or  were  not  originally 
cognizant  of  the  terms  of  shipment,  so  as  to  be  bound  in  the  first 
instance  to  pay  the  just  amount  of  transportation  charges,  the  plain- 
tiff is,  in  our  opinion,  estopped  from  demanding  any  greater  sum  than 
was  demanded  when  the  ties  were  delivered.  *  *  *  By  means  of 
the  representations  of  the  plaintiff  the  defendants  were  led  to  change 
their  position.  Not  that  payment  of  the  freight  bills  would  have  com- 
pleted the  estoppel.  But  when  the  defendants,  in  reliance  upon  the 
correctness  of  the  freight  bills,  after  paying  them  and  receiving  the 
plaintiff's  receipts  therefor,  proceeded  in  good  faith  to  close  accounts 
with  their  consignor,  deducting  the  freight  bills  as  agreed,  and  paying 
over  the  balance  due  for  the  ties,  the  estoppel  was  complete.  For  it 
appears  that  thereby  the  defendants  parted  with  the  very  fund  against 
which  alone  they  had  a  right  to  charge  the  freight.     *     *     * 

Let  the  judgment  below  be  reversed,  and  final  judgment  be  entered 
in  favor  of  the  defendants,  with  costs.* 


SECTION  2.— WHEN  FREIGHT  IS  EARNED 


CLARK  V.  PIASTERS. 

(Superior  Court  of  City  of  New  Yorlc,  IS-jT.     1  Bosw.  177.) 

Action  for  the  wrongful  detention  of  wheat.  Defendants  were 
warehousemen,  with  whom  the  wheat  had  been  stored  by  Fitzhugh  & 
Littlejohn,  common  carriers  by  canal  boat,  who,  on  arrival  of  the 
cargo  at  destination,  had  refused,  under  circumstances  stated  in  the 

4  In  Wliite  T.  Furness.  flSOril  A.  C.  40.  4.^.  wliere  a  statute  deprived  tlie  ship- 
owner of  liis  lien  for  freight,  Lord  Ilershell.  L.  C.  said:  "As  soon  as  the  shi])- 
owner's  lien  is  discharged  he  ceases  to  have  any  right  to  the  goods  which  lie 
in  the  warehouse.  They  are  not  his  property :  the  only  right  which  he  ever 
had  to  them  Avas  a  right  of  lien.  *  *  *  How,  then,  can  the  receipt  of  the 
goods  hy  the  agent  of  the  owner  from  the  dock  company,  who  are  legally 
bound  to  deliver  them,  give  rise  to  any  inference  of  a  promise,  or  afford  the 
consideration  for  any  promise  by  the  consignee  to  pay  freight  to  the  ship- 
owner?" 

See.  also,  N.  Y.  &  N.  E.  R.  Co.  v.  Sunders,  134  Mass.  TiS  (1883).  consignee 
notified  by  carrier  not  to  take  goods  withont  paying  freight :  Old  Col.  R.  Co. 
V.  Wilder.  137  ^Nlass.  030  (1884),  consignee  not  aware  that  carrier  looked  to  him 
for  freight;  Dart  v.  Ensign,  47  X.  Y.  619  (1872),  consignee  known  to  take  as 
agent  only. 

The  assignment  of  the  contract  of  carriage  by  indorsement  and  delivery 
of  a  bill  of  lading  to  order,  though  made  to  a  buyer  of  the  goods,  does  not  im- 
pose on  the  assignee  a  liability  for  freight.  See  Sanders  v.  Vanzeller,  4  A.  & 
E.  (N.  S.)  200,  295  (1843),  changed  in  England  by  statute,  Bills  of  Lading  Act 
1-8.55.  18  &  19  Vict.  111.  Nor  does  it  render  the  indorser  liable  though  the  in- 
dorsee receives  the  goods.  See  Burton  v.  Strachan,  3  E.  D.  Smith  (X.  Y.)  192, 
note  (1854). 


Ch.   1)  FREIGHT.  263 

opinion,  to  deliver  it  to  plaintiffs,  the  consignees.  Defendants  refused 
to  deliver  unless  they  were  paid,  not  only  freight,  but  storage  charges. 

DuER,  J.^  *  *  *  There  is  plainly  only  one  ground  upon  which 
the  refusal  of  Littlejohn  to  deliver  the  wheat  upon  the  terms  proposed 
can  be  vindicated,  namely:  That  in  giving  notice  to  the  plaintififs  of 
the  arrival  of  the  wheat,  he  had  done  all  he  was  bound  to  do,  and  was 
entitled  to  demand  the  payment  of  the  whole  freight  and  charges,  be- 
fore any  part  of  the  cargo  was  moved ;  that  the  notice,  in  other  words, 
was  equivalent  to  actual  delivery.  The  law  was  thus  laid  down  by  the 
learned  judge  upon  the  trial,  and  he  founded  on  it  a  positive  direction 
to  the  jury  to  find  a  verdict  for  the  defendants.  *  *  *  The  law, 
by  a  very  reasonable  exception,  releases  the  master  of  a  vessel,  in 
which  the  goods  to  be  delivered  are  transported,  from  the  duty  of 
seeking  out  the  owner  or  consignee,  and  making  to  him  personally  an 
actual  delivery  or  tender  of  a  delivery,  but  in  his  case  holds  it  to  be 
sufficient  that  he  gives  a  written  notice  to  such  owner  or  consignee  of 
the  arrival  of  the  vessel,  and  of  the  place  where  the  goods  will  be 
landed,  and  their  delivery  be  made,  thus  casting  upon  the  consignee 
the  duty  of  attending  at  the  place  so  designated,  of  receiving  there 
the  delivery  of  the  goods,  and  paying  the  freight  for  their  transpor- 
tation. 

We  think,  however,  that  we  are  entirely  safe  in  saying  that  there 
is  no  authority,  nor  semblance  of  an  authority,  for  the  position  that 
the  notice,  by  the  master  of  a  vessel,  of  the  place  where  he  intends  to 
deliver  the  goods,  has  the  same  eflfect  as  an  actual  personal  delivery 
or  tender  by  an  ordinary  carrier,  so  as  to  give  to  the  party  in  the  one 
case  as  well  as  in  the  other,  an  immediate  right  to  demand  the  payment 
of  the  freight.  We  believe  the  doctrine  to  be  absolutely  novel.  We 
are  certain  it  would  be  most  unreasonable.  The  ordinary  carrier,  in 
tendering  the  goods  themselves,  does  all  that  the  law  can  require  him 
to  perform,  all  indeed  that  he  can  do,  to  entitle  him  to  his  freight.  The 
master,  in  giving  notice  to  the  consignee,  performs  only  a  part  of  the 
duty  that  he  is  bound  to  perform,  to  render  his  demand  of  freight  con- 
sistent with  law  or  reason. 

It  is  a  serious  mistake  to  suppose  that  the  payment  of  freight  is  a 
condition  precedent  to  the  delivery  of  the  cargo  in  the  sense  that  has 
been  contended  for;  that  is,  precedent  even  to  the  discharge  of  the 
cargo.  The  discharge  or  unlading  of  the  cargo  is  a  duty  that  the  law 
casts  upon  the  master,  the  whole  labor  and  expense  must  be  borne  by 
him  or  his  owner.  To  enable  him  to  deliver  the  cargo,  this  'duty  of  un- 
lading it  must  first  be  performed,  and  its  performance  is  as  truly  a 
condition  precedent  to  the  constructive  "delivery  of  the  goods  by  a  ten- 
der, as  to  their  actual,  by  a  change  of  possession. 

The  payment  of  freight  and  the  delivery  of  the  goods  are  simul- 

5  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion  are 
omitted. 


264  THE   OBLIGATION   OF   THE   SHIPPER.  (Part  3  ' 

taneous  and  concurrent  acts ;  neither,  strictly  speaking,  is  a  condition 
precedent  to  the  other.  As  in  the  case  of  the  dehvcry  of  a  deed,  and 
the  payment  of  the  purchase  money  agreed  to  be  made  on  the  same 
day,  they  are  conditions  mutually  dependent.  The  consignee  is  not 
bound  to  pay  the  freight  until  the  goods  are  delivered,  nor  the  master 
to  deliver  the  goods  until  the  freight  is  paid.  If  the  goods  are  with- 
held the  freight  must  be  tendered,  if  the  freight,  the  goods,  to  enable 
either  party  to  maintain  an  action  against  the  other,  for  a  breach  of 
contract.^  Hence,  in  the  present  case,  if  the  master  was  not  in  a  con- 
dition to  make  an  immediate  delivery  of  the  wheat,  he  could  have  no 
right  to  demand  the  payment  of  freight ;  and  he  certainly  could  make 
no  delivery  that  the  plaintiffs  were  bound  to  accept,  so  long  as  the 
wheat  remained  on  board  his  vessel,  and  the  duty  of  discharging  it 
rested  upon  him.  Thus  the  allegation  that  the  notice  which  the  mas- 
ter had  given  was  alone  sufficient  to  justify  his  demand  of  freight,  it 
seems  to  us,  is  proved  to  be  groundless.  It  evidently  escaped  the  at- 
tention of  the  learned  judge  who  tried  this  cause,  and,  perhaps,  of  the 
counsel,  that  to  discharge  the  cargo  is  a  duty  that  belongs  to  the  mas- 
ter, and  his  performance  of  it,  unless  otherwise  agreed,  a  condition 
precedent  to  his  claim  for  freight. 

But  there  are  other,  and  very  conclusive,  reasons  for  holding  that 
the  claim  of  the  master,  in  the  present  case,  for  the  whole  freight, 
before  the  wheat,  or  any  portion  of  it,  was  delivered  or  offered  to  be 
delivered,  cannot  be  sustained.  We  apprehend  that  it  is  now  settled 
law,  that  the  owner  of  goods  is  not  bound  to  accept  their  delivery, 
and  pay  the  freight,  until  he  has  had  an  opportunity  of  ascertaining 
how  far  they  correspond  in  quantity  and  description  with  the  bill  of 
lading,  and  of  examining  into  their  actual  state  and  condition.  He 
has  a  right  to  deduct  from  the  usual  or  stipulated  freight  any  damage 
which  the  goods  may  have  received  on  the  voyage,  not  imputable  to 
the  perils  of  navigation  ;  and  also,  any  deficiency  from  the  quantity 
mentioned  in  the  bill  of  lading;^  and  it  is  evident  that,  to  enable  him 
to  exercise  this  important  right,  an  examination,  prior  to  the  payment 
of  freight,  is  indispensable.  If  all  the  facts,  necessary  to  be  known  by 
the  owmer,  can  be  ascertained  by  him  before  an  unlading  of  the  cargo, 
the  examination  may  then  be  had ;  but  if  not,  the  goods  must  be  un- 
laden at  the  expense  of  the  master,  and  placed  in  a  situation  to  enable 
the  owner  effectually   to  exercise  his  rights.     This   right   was   very 


c  "Where  two  acts  are  to  bo  concurrent,  there  must  be  a  concurrent  readi- 
ness on  both  sides — on  the  one  to  deliver,  and  on  the  other  to  pay.  Each  party 
is  entitled  to  see  that  the  other  is  ready  to  do  his  part,  and  it  is  for  the  jury 
to  say  which  is  in  default."  Per  Montague  Smith,  J.,  in  Paynter  v.  .James, 
L.  R.  2  C.  P.  348,  3.57  (1S(37).  For  the  application  of  the  rule  where  the  con- 
signee tenders  too  little  and  the  carrier  demands  too  much,  compare  The  Nor- 
way. B.  &  L.  404  (1865),  with  Loewenberg  v.  Railway  Co.,  uG  Ark.  430,  19  S. 
W.  1051  (1892). 

7  See  post,  p.  277,  note. 


Ch.   1)  FREIGHT.  265 

distinctly  claimed  by  the  plaintiffs  in  the  present  case,  and  as  plainly 
denied  by  the  master — denied  by  his  refusal  to  place  the  ^vheat  in  a 
situation  in  which  it  could  be  examined,  unless  the  whole  freight  were 
previously  paid.  It  is  true  he  offered  to  deliver  the  wheat,  bushel  by 
bushel,  receiving  a  pro  rata  freight  for  each  bushel  as  delivered ;  but 
it  is  very  clear  that  this  was  not  an  offer  to  which  the  plaintiffs  were 
bound  to  accede. 

The  contract  of  affreightment,  in  respect  to  each  consignment,  is 
entire,  and  no  portion  of  the  freight  is  due  until  the  whole  consign- 
ment is  delivered.  The  master  has  no  right  to  divide  and  split  up  the 
consignment  into  as  many  lots  or  parcels  as  he  may  deem  convenient, 
making  as  many  contracts  as  there  are  parcels,  and  as  many  freights 
as  there  are  contracts.  The  freight,  when  payable,  is  payable  as  a 
whole,  and  it  is  not  payable  until  all  the  goods  to  which  it  relates  have 
been  delivered  or  tendered.®  *  *  *  It  is  said  that  the  unlading 
of  the  wheat,  for  the  purpose  of  ascertaining  its  quantity,  would  have 
been  attended  with  great  labor  and  expense ;  but  if  this  unlading  was 
a  duty  which  the  carriers  undertook  to  perform,  if  its  performance 
was  necessarily  implied  in  their  contract  to  transport  and  deliver  the 
wheat,  the  question  of  its  labor  and  expense  was  plainly  immaterial. 
We  are  bound  to  presume  that  they  were  taken  into  consideration  in 
fixing  the  amount  of  the  freight.  *  *  *  The  plaintiffs  offered,  at 
their  own  expense,  to  provide  a  lighter,  and  that  the  carriers  should 
retain  their  possession,  and  consequently  their  lien,  until  the  freight 
was  ascertained  and  paid.  It  was  the  manifest  duty  of  the  master  and 
his  owner,  Littlejohn.  to  have  complied  with  this  offer,  by  unlading  and 
delivering  the  wheat  in  conformity  to  its  terms ;  their  refusal  to  com- 
plv  with  it  was  in  effect  a  refusal  to  deliver  the  wheat  at  all.  It  was 
a  breach  of  their  contract,  amounting  in  law  to  a  wrongful  conver- 
sion to  their  own  use  of  the  property  they  had  undertaken  to  deliver, 
and  the  defendants,  by  refusing  to  surrender  to  the  plaintiff,  upon  re- 
quest, the  property  thus  wrongfully  converted,  were  guilty  of  its 
wrongful  detention.  Upon  the  evidence  on  the  trial,  the  plaintiffs 
were  entitled  to  a  verdict  for  its  full  value. 

The  verdict  for  the  defendants  must  therefore  be  set  aside,  and 
there  must  be  a  new  trial,  with  costs  to  abide  the  event.® 

8  Ace.  170  Tons  of  Coal.  9  Ben.  400.  Fed.  Cas.  No.  10..^22  (1878) ;  Wayne, 
J.,  in  Brittan  v.  Barnaby.  21  How.  .527.  16  L.  Fa\.  177  (18.58);  1,26-5  Vitrified 
Pipes,  14-  Blatchf.  274,  Fed.  Cas.  No.  10.-536  (1877).  semble. 

9  In  Moeller  v.  Young.  5  E.  &  B.  7,  19  (18-55).  consignees  who  refused  to  pay 
freight  for  that  part  of  the  cargo  which  they  had  received,  the  rest  being  still 
on  the  vessel,  were  held  liable  for  resulting  delay.  Lord  Campbell.  C.  J., 
said:  "The  question,  therefore,  becomes  whether  the  master  was  bound  to  de- 
liver all  the  goods  before  he  was  iiaid  for  any.  Now,  as  the  delivery  and 
payment  should  be  concurrent  acts,  if  each  party  stood  on  his  summum  jus, 
a  difficulty  might  arise  as  to  the  mode  of  carrying  out  the  contract.  But  a 
reasonable  way  may  be  found  of  performing  it.  Although  part  has  been  de- 
livered, the  master  may  decline  to  deliver  the  residue  till  the  freight  is  paid. 
Therefore  it  is  true  that  the  master  has  always  been  ready  to  deliver,  and  that 


266  THE  OBLIGATION   OF  THE   SHIPPEB.  (Part  3 

WESTERN  TRANS  P.  CO.  v.  HOYT. 

(Court  of  Appeals  of  New  York,  1S87.    69  N.  Y.  230.  25  Am.  Rep.  IT-j.) 

Appeal  from  a  judgment  entered  on  a  nonsuit.  Plaintiff  sued  as  a 
common  carrier  for  freight  and  charges  on  a  cargo  of  14,650  bushels 
of  oats  carried  on  his  canal  boat  for  defendants  from  Buffalo  to  New 
York.  By  the  bill  of  lading  the  consignees  were  to  discharge  the 
cargo  within  three  days  after  arrival  and  notice  thereof  or  pay  demur- 
rage. The  boat  arrived  in  November.  Defendants  removed  -5,000 
bushels  of  oats  and  then  stopped.  The  three  days  to  finish  discharge 
would  have  expired  Tuesday  at  midnight,  but  plaintiff  at  6  p.  m.  took 
the  boat  to  Brooklyn  and  stored  the  rest  of  the  oats  with  one  Barber. 
In  March  Barber  delivered  them  to  the  defendants.  In  an  action  by 
plaintiff  against  Barber  for  so  delivering,  it  had  been  held  that  under 
the  circumstances  plaintiff  converted  the  oats  by  storing  them,  and 
lost  his  lien  for  freight. 

Church.  C.  J.^°  The  decision  in  the  case  of  the  present  plaintiff* 
against  Barber,  56  N.  Y.  544,  disposes  of  some  of  the  questions  in- 
volved in  this  case.  *  *  *  The  construction  of  the  bill  of  lading, 
the  character  of  the  act  of  the  plaintiff  in  storing  the  oats,  and  the 
effect  of  the  act  upon  its  rights  to  a  lien  for  freight  must  be  regarded 
as  adjudged  and  settled  in  the  case  referred  to.     *     *     * 

It  is  urged  that  the  defendants'  taking  possession  of  the  property 
entitled  the  plaintiff  to  the  freight.  There  is  some  apparent  plausibility 
in  equity  in  this  position,  but  it  must  be  observed  that  a  delivery  to  the 
consignees  is  as  much  a  part  of  the  contract  as  the  transportation. 
Mr.  Angell,  in  his  w^ork  on  Carriers,  says :  "It  is  not  enough  that  the 
goods  be  carried  in  safety  to  the  place  of  delivery,  but  the  carrier 
must,  and  without  any  demand  upon  him,  deliver,  and  he  is  not  entitled 

the  defeiKlants  have  entered  into  a  contract  to  accept,  which  has  been  broken." 

In  Henderson  v.  300  Tons  of  Iron  Ore  (D.  C.)  38  Fed.  3G  (18S0),  Brown.  J., 
said:  "When  the  payment  of  freiglit  and  delivery  of  the  cargo,  as  a  whole. 
are  by  the  legal  rule  made  concurrent  acts,  great  practical  difficulties  arise, 
if  the  quantity  is  large  and  each  side  stands  on  its  legal  rights.  The  amount 
may  be  so  gi-eat  that  part  of  the  cargo  may  have  to  lie  removed  before  the 
rest  is  discharged;  and  if  the  consignee  refuses  to  ]\ay  pro  rata  freight  on 
what  is  removable,  or  to  give  security  for  payment,  the  ship  is  not  bound  to 
deliver  piecemeal,  and  may  remove  and  store  such  parts  as  are  necessary  to  be 
removed  at  the  consignee's  expense."  See,  also,  Brittan  v.  Barnaby,  21  How. 
527,  16  L.  Ed.  177  (1858). 

"In  the  absence  of  any  custom  to  govern  the  matter,  the  person  who  wants 
to  ascertain  the  quantity  must  incur  the  trouble  and  expense  of  weighing.  It 
is  by  no  means  an  uncommon  thing  to  have  goods  weighed  on  board :  but  I 
never  heard  of  the  merchant  being  called  upon  to  pay  for  it."  Willes,  J.,  in 
Coulthurst  V.  Sweet.  L.  R.  1  C.  P.  649  (1866). 

"It  was  the  ship's  duty,  therefore,  to  ascertain  the  weight,  because  she 
could  not  lawfully  continue  to  hold  possession  of  the  cargo  after  the  con- 
signee was  ready  to  receive  it,  without  informing  him  as  soon  as  reasonably 
practicable,  of  the  amount  of  freight  to  be  paid."  Brown,  J.,  in  Henderson 
v.  300  Tons  of  Iron  Ore,  supra. 

10  The  statement  has  been  rewritten,  and  parts  of  the  opinion  are  omitted. 


Ch.   1)  FREIGHT.  267 

to  freight  until  the  contract  for  a  complete  delivery  is  performed."  Sec- 
tion 282.  When  the  responsibility  has  begun,  it  continues  until  there 
has  been  a  due  delivery  by  the  carrier.  Id.,  note  1,  and  cases  cited. 
Parsons  on  Shipping,  220.  And  in  this  case,  the  bill  of  lading  ex- 
pressly requires  the  property  to  be  transported  and  delivered  to  the 
consignees.  The  delivery  was  as  essential  to  .performance  as  transpor- 
tation to  New  York,  and  it  is  a  substantial  part  of  the  contract.  The 
plaintiff  might  as  well,  in  a  legal  view,  have  stopped  at  Albany,  or  any 
other  intermediate  port,  and  stored  the  grain,  as  to  have  stored  it  in 
Brooklyn.  In  either  case  he  could  not  aver  a  full  performance,  nor 
that  he  was  prevented  by  the  defendants  from  performing.  It  follows 
that  he  cannot  recover  upon  the  contract.^ ^  Performance  is  a  condi- 
tion precedent  to  a  recovery.  As  said  by  Lord  Ellenborough  in  Lid- 
dard  v.  Lopes,  10  East,  526 :  "The  parties  have  entered  into  a  special 
contract  by  which  freight  is  made  payable  in  one  event  only,  that  of  a 
right  delivery  of  the  cargo  according  to  the  terms  of  the  contract,  and 
that  event  has  not  taken  place,  there  has  been  no  such  delivery,  and 
consequently  the  plaintiff  is  not  entitled  to  recover." 

As  the  plaintiff  cannot  recover  under  the  contract,  if  he  has  any 

11  Ace.  Holliday  v.  Coe.  3  Ind.  20  (ISTA).  cargo  lost  by  sinking:  Atlantic  Mut. 
Ins.  Co.  V.  Bird,"^  2  Bosw.  lO.'j  (18.57),  vessel  wrecked  near  destination,  cargo 
brought  to  destination  by  cargo  owner ;  China  Ins.  Co.  v.  Force.  142  N.  Y.  90, 
36  n!  E.  874,  40  Am.  St.  Rep.  .576  (1894).  owners  of  cargo  on  vessel  wrecked 
near  destination  entitled  to  proceeds  without  deduction  for  freight ;  The 
Nathaniel  Hooper,  3  Sumn.  542,  Fed.  Cas.  No.  10,032  (1839)  ;  The  Industrie, 
[1S94]  P.  .58.  cargo  justifiably  sold  at  port  of  distress ;  Metcalf  v.  Brittauia 
Co.,  2  Q.  B.  D.  423  (1877).  port  of  destination  blocked  by  ice,  c-irrier  insisted 
on  delivering  as  near  thereto  as  vessel  could  get ;  Lane  v.  renninian,  4  Mass. 
91  (1808),  delivery  by  one  who  had  dispossessed  carrier.  And  see  Tirrell  v. 
Gage,  4  Allen  (:\Iass!)  24.5  (18(52) ;  Harris  v.  Rand.  4  N.  H.  5.5.5  (1829),  goods 
destroyed  after  being  discharged  and  ready  to  delirer,  but  before  consignee 
had  time  to  take:  Duthie  v.  Hilton,  L.  R.  4  C.  P.  138  (1868).  "freight  to  be 
paid  within  three  days  after  arrival  and  before  delivery,"  and  goods  destroyed 
on  board  vessel  at  anchor  in  harbor  the  night  after  her  arrival. 

In  Stewart  v.  Rogerson,  L.  R.  6  C.  P.  424  (1871),  a  question  arose  as  to  a 
carrier's  right  to  sue  for  freight  on  cargo  which,  in  a  suit  in  admiralty 
against  the  carrier,  had  been  attached  for  the  purpose  of  reaching  the  interest 
represented  by  the  carrier's  lien  for  freight.  The  cargo  owner  might  have  dis- 
charged the  attachment  and  obtained  his  goods  by  paying  the  freight  into 
court.  Brett.  J.,  said:  "It  is  clear  the  plaintiff  is  not  entitled  to  recover  the 
freight  as  freight.  *  *  *  Once  seized,  the  freightei-  could  not  get  his  goods 
by  going  to  the  ship  and  paying  the  freight.  I  think  he  was  not  bound  to  go  to 
the  achniraltv  court  and  pay  it  there." 

"If  a  Ship  be  freighted  out  and  in.  there  arises  due  for  Freight,  nothing,  till 
the  whole  Voyase  be  perfonned:  So  that  if  the  Ship  die.  or  Is  cast  away  com- 
ing home,  the  Freight  outwards,  as  well  as  inwards  becomes  lost."  ^lolloy, 
De  Jure  Maritimo.  bk.  II,  c.  4,  §  9.  Ace.  Donahoe  v.  Kettell,  1  Cliff.  135,  Fed. 
Cas.  No.  3.980  (1858). 

Compare  Aldrich  v.  Cargo  of  Coal  (D.  C.)  117  Fed.  757  (1902),  goods  delivered 
after  vessel  had  sunk:  Barnett  v.  Cent.  Line,  51  Ga.  4.39  (1874),  goods  carried 
part  way  by  trespasser ;  Cargo  ex  Argos,  L.  R.  5  P.  C.  1.34  (1.S73),  cargo  ready  to 
deliver,  but,  because  no  one  appeared  to  take,  vessel  had  to  sail  away  with  it; 
Clendaniel  v.  Tuckerman,  17  Barb.  184  (18.53),  cargo  owner  prevented  discharge 
of  cargo  by  wrongfully,  though  temporarily,  obstructing  the  wharf,  and  after 
the  lapse  of  a  time  ordinarily  sutRcient  for  the  unloading  and  receipt  of  the 
goods,  they  were  accidentally  destroyed  while  still  on  board. 


268  THE  OBLIGATION  OF  THE  SHiprER.  (Part  3 

claim  for  freight  it  is  only  for  pro  rata  freight,  which  is  sometimes 
allowed,  when  the  transportation  has  been  interrupted  or  prevented 
by  stress  of  weather  or  other  cause.  In  such  a  case,  if  the  freighter 
or  his  consignee  is  willing  to  dispense  with  the  performance  of  the 
whole  voyage,  and  voluntarily  accept  the  goods  before  the  complete 
service  is  rendered,  a  proportionate  amount  of  freight  will  be  due  as 
"freight  pro  rata  itineris."'  This  principle  was  derived  from  the  ma- 
rine law,  and  it  is  said  that  the  common  law  presumes  a  promise  to 
that  effect  as  being  made  by  the  party  who  consents  to  accept  his 
goods  at  a  place  short  of  the  port  of  destination,  for  he  obtains  his 
property  with  the  advantage  of  the  carriage  thus  far.  The  principle 
is  based  upon  the  idea  of  a  new  contract,  and  not  upon  the  right  to 
recover  upon  the  original  contract.  The  application  of  this  principle 
has  been  considerably  modified  by  the  courts. 

In  the  early  case  of  Luke  v.  Lyde,  2  Burr.  889,  a  contract  was  in- 
ferred from  the  fact  of  acceptance,  and  the  rule  was  enunciated  with- 
out qualification  that  from  such  fact,  without  regard  to  the  circum- 
stances, and  whether  the  acceptance  was  voluntary  or  from  necessity, 
a  new  contract  to  pay  pro  rata  freight  might  be  inferred.  Some  later 
English  cases,  and  the  earlier  American  cases,  apparently  followed  this 
rule ;  but  the  rule  has  been  in  both  countries  materially  modified,  and 
it  is  now  held  that  taking  possession  from  necessity  to  save  the  prop- 
erty from  destruction,  or  in  consequence  of  the  wrongful  act  of  the 
freighter,  as  in  Hunter  v.  Prinsey,  10  East,  394,  and  in  13  M.  &  Wels. 
229,  where  the  master  caused  the  goods  to  be  sold,  or  when  the  carrier 
refused  to  complete  the  performance  of  his  contract,  the  carrier  is 
not  entitled  to  any  freight.  Parke,  B.,  in  the  last  case,  stated  the  rule 
with  approval,  that  to  justify  a  claim  for  pro  rata  freight  there  must  be 
a  voluntary  acceptance  of  the  goods  at  an  intermediate  port,  in  such 
a  mode  as  to  raise  a  fair  inference  that  the  further  carriage  of  the 
goods   was  intentionally  dispensed  with;^-    and  Lord  Ellenborough, 


12  In  the  case  here  referred  to,  Vlierbooin  v.  Chapman,  1.3  Mees.  &  W.  2.30 
(1844),  rice  so  damaged  by  sea  water  that  it  would  have  been  worthless  If 
carried  to  destination  was  sold  by  the  master  at  a  port  of  distress.  The  ship- 
owner claimed  freight  pro  rata.  Parke.  B..  said:  "It  was  conceded  that  the 
tiiie  principle  upon  which  this  description  of  freight  is  due  is  that  a  new  con- 
tract may  be  implied  to  pay  it.  from  the  acceptance  by  the  consignee  of  his 
goods  delivered  at  an  intermediate  port,  instead  of  the  destined  port  of  de- 
livery. *  ♦  *  But  it  was  said  that  *  *  *  necessity  imposed  upon  the 
master  the  character  of  an  agent  for  the  shipper,  in  addition  to  his  ordinary 
one  of  agent  for  the  shipowner,  and  that,  having  that  doul^le  agency,  he  might 
be  presumed  to  have  inttnuled  to  mai^e  a  reasonable  contract  between  his  two 
principals ;  that  is.  on  behalf  of  the  shipowner,  to  give  up  the  goods  at  the 
Intermediate  port,  instead  of  carrying  them  on,  and  on  behalf  of  the  shipper, 
to  receive  them  there,  and  pay  reasonable  freight  for  the  part  of  the  voyage 
already  performed.  It  is  difhcult  to  conceive  any  conjuncture  in  which  such 
a  presumption  could  be  made ;  for  the  agency  of  the  master  from  necessity 
arises  from  his  total  inability  to  carry  the  goods  to  the  place  of  destination, 
which  dispensed  with  the  performance  of  that  primary  duty  altogether,  and 
the  right  to  freight  pro  rata  from  the  presumed  waiver  on  the  part  of  the  ship- 


Ch.   1)  FREIGHT.  269 

in  Hunter  v.  Prinsey,  supra,  said :  "The  general  property  in  the  goods 
is  in  the  freighter;  the  shipowner  has  no  right  to  withhold  the  pos- 
session from  him  unless  he  has  either  earned  his  freight  or  is  going  on 
to  earn  it.  If  no  freight  be  earned,  and  he  decline  proceeding  to  earn 
any,  the  freighter  has  a  right  to  the  possession." 

Thompson,  C.  J.,  in  15  J.  R.  12,  said:  "If  the  shipowner  will  not 
or  cannot  carry  on  the  cargo,  the  freighter  is  entitled  to  receive  his 
goods  without  paying  freight."  It  is  unnecessary  to  review  the  au- 
thorities. The  subject  is  considered  in  Angell  on  Carriers,  §  402  to 
409,  and  Abbott  on  Shipping  (5th  Am.  Ed.)  547,  and  in  the  notes  and 
numerous  cases  referred  to,  and  the  rule  as  above  stated  seems  to  have 
been  generally  adopted  by  nearly  all  the  recent  decisions,  and  its  man- 
ifest justice  commends  itself  to  our  judgment.  In  this  case  no  infer- 
ence of  a  promise  to  pay  pro  rata  or  any  freight  can  be  drawn.  The 
circumstances  strongly  repel  any  such  intention.  The  carrier  doubt- 
less acted  in  accordance  with  what  it  believed  to  be  its  legal  rights, 
but  the  act  of  storing  was  a  refusal  to  deliver,  and,  as  we  held  in  the 
Barber  Case,  supra,  a  wrongful  act  amounting  to  conversion,  quite 
equal  in  effect  to  the  sale  of  the  goods  in  the  cases  cited.  The  carrier 
must  therefore  be  regarded  as  refusing  to  deliver  the  oats.  Neither 
the  owner  nor  his  consignee  intended  to  waive  a  full  performance  or 


per  of  the  performance  of  a  cTnty  which  the  master  was  ready  to  execute. 
*  *  *  But  if  we  suppose  that  he  had  a  further  authority,  aud  that,  instead 
of  being  the  master,  he  had  been  supercargo,  aud  that  his  sale  of  the  goods 
had  been  equivalent  to  a  sale  by  the  defendants  themselves,  present  at  the 
Mauritius,  tJiere  would  have  been  no  reasonable  ground  to  infer  a  new  con- 
tract to  pay  freight  pro  rata  ;  for  the  shipowner  was  not  ready  to  carry  for- 
,ward  to  the  poi-t  of  destination  in  his  own  or  another  ship,  and  consequently 
no  inference  could  arise  that  the  shippers  were  willing  to  dispense  with  the- 
further  carriage  and  accept  the  delivery  at  the  intermediate  instead  of  the 
destined  port." 

In  Hopper  v.  Burness,  1  C.  P.  D.  137  (1876),  cargo  coal  .iustifiably  sold  at  a 
port  of  distress  to  raise  money  for  necessary  repairs  to  the  ship  fetched  more 
than  it  would  have  brought  at  destination.  It  was  held  that  the  carrier  must 
account  to  the  shipper  for  the  entire  proceeds  without  deduction  for  pro  rata 
freight. 

"The  cotton  reached  the  Morgan  Line  Pier  in  New  York,  and  on  February 
~2S,  1887,  while  certain  portions  of  the  shipments  were  either  on  the  pier  or 
on  partially  loaded  lighters  alongside  the  pier,  a  fire  occurretl,  by  which  some 
T>f  the  bales  were  destroyed  aud  other  bales  were  injured  to  such  an  extent 
that,  instead  of  being  reconditioned  and  forwarded  to  destination,  they  were 
sold  here.  *  *  *  As  to  each  damaged  bale,  therefore,  there  arose  the  ques- 
tion whether  it  should  be  reconditioned  and  forwarded  or  sold  for  the  benefit 
of  all  concerned.  It  appears  from  the  evidence  that  the  Insurance  company, 
which,  as  abandonee  of  the  damaged  cotton,  represented  the  cargo  owners,  was 
from  the  beginning  in  communication  with  the  representatives  of  the  car- 
rier; that  it  was  informed  as  to  every  important  step  taken;  that  when  there 
Avas  any  question  as  to  whether  a  bale  of  cotton  should  be  reconditioned  for 
forwarding  or  be  sold  here  it  was  informed  and  consulted  with ;  and  that 
whatever  course  was  taken,  was  taken  with  its  approval  and  concurrence. 
There  is  no  contradiction  of  this  testimony,  and,  in  our  opinion,  it  clearly 
makes  out  a  case  of  voluntary  acceptance  at  the  intermediate  port,  any  fur- 
ther carriage  of  those  particular  bales  being  intentionally  dispensed  with  by 
the  owner,  and  implies  a  contract  to  remunerate  the  carrier  for  the  service 


270  THE   OBLIGATION   OF   THE   SHII'i'ER.  (Part  3 

to  assume  voluntarily  to  relieve  the  plaintiff  from  nonperformance. 
They  claimed  the  possession  of  the  property  and  the  rig-ht  to  posses- 
sion discharged  from  all  claim  for  freight,  and  indemnified  the  ware- 
houseman against  such  claim.  Every  circumstance  repels  the  idea  of 
a  promise  to  pay  pro  rata  freight.  The  case  stands,  therefore,  unem- 
barrassed by  the  circumstance  that  the  consignee  took  possession  of 
the  property  under  the  circumstances,  and  it  presents  the  ordinary 
case  of  an  action  on  contract  where  the  party  seeking  to  enforce  it  has 
not  shown  a  full  performance. 

The  next  question  is,  whether  the  plaintiff  is  entitled  to  freight  upon 
the  5,000  bushels  delivered.  The  contract  for  freight  is  an  entirety, 
and  this  applies  as  well  to  a  delivery  of  the  whole  quantity  of  goods 
as  to  a  delivery  at  all,  or  as  to  a  full  transportation.  Parsons  on  Ship- 
ping, 204.  There  are  cases  where  this  rule  as  to  quantity  has  been 
qualified,  but  they  have,  I  think,  no  application  to  the  present  case. 
The  delivery  of  the  5,000  bushels  was  made  with  the  understanding  and 
expectation  that  the  whole  quantity  was  to  be  delivered,  and  no  infer- 
ence can  be  drawn  of  an  intention  to  pay  freight  in  part  without  a  de- 
livery of  the  whole.  The  quantity  delivered  must  be  regarded  as  hav- 
ing been  received  subject  to  the  delivery  of  the  whole  cargo.  There 
was  no  waiver.  The  principle  involved  is  analogous  to  a  part  delivery 
from  time  to  time  of  personal  property  sold  and  required  to  be  deliv- 

actually  performed.  *  *  *  From  the  decree  of  the  District  Court  the  re- 
spondent also  appeals  insisting  that  the  carrier  should  be  allowed  to  reserve 
from  the  proceeds  of  the  damaged  cotton  pro  rata  freight  for  the  bales  which 
were  totally  destroyed.  *  *  *  n  jg  urged  that  since  the  bills  of  lading 
provide  for  successive  transportations  by  successive  carriers,  with  a  provision 
that  the  liability  of  each  carrier  for  loss  or  damage  to  the  goods  shall  cease 
on  his  delivery  of  the  cotton  to  the  next  carrier,  each  separate  transportation 
should  be  treated  as  a  separate  voyage.  But  the  contract  is  a  single  one  for 
the  entire  transportation  from  the  port  of  original  loading  to  the  port  of 
ultimate  destination,  *  *  *  Had  the  carriers  chosen  to  apportion  the 
freight  in  advance,  and  to  require  the  shipper  to  pay  separately  for  each  suc- 
cessive stage  of  the  voyage,  it  was  competent  for  them  to  insert  such  provi- 
sions in  the  contract.  Not  having  done  so,  their  contract  must  be  interpreted 
as  such  contracts  of  affreightment  always  have  been,  and  their  right  to  de- 
mand freight  be  held  dependent  upon  delivery  at  destination."  Lacombe,  J., 
in  British  &  Foreign  Mar.  Ins.  Co.  v.  So.  Pac.  Co.,  72  Fed.  285,  18  C.  C.  A. 
561  (189G). 

For  cases  where  pro  rata  freight  was  allowed,  see  The  IMohawk,  8  Wall. 
153,  19  L.  Ed.  40f3  (1808).  deliverv  at  intermediate  port  by  shipper's  request; 
Grav  v.  Wain,  2  Serg.  &  R.  (Fa.)  229.  25(3.  7  Am.  Dec.  042  (1810).  higher  market 
at  intermediate  port;  The  Teutonia,  L.  R.  3  A.  &  E.  3!>4,  416-424  (1871).  de- 
liverv at  destination  imlawful  (decided  on  appeal  upon  another  ground) ;  Scow 
No.  190,  88  Fed.  320  (1898).     See,  also,  Laws  of  Oleron,  art.  4,  ante,  p.  58. 

"Almost  all  the  maritime  countries  except  England  *  *  *  regard  the 
freight  as  a  liability  from  the  cargo  accruing  as  it  were  mile  by  mile  as  the 
vessel  proceeds  and  culminating  at  its  full  bill  of  lading  amount  at  port  of 
destination  on  safe  delivery."    Gow,  Marine  Insurance,  161. 

As  to  the  manner  of  calculating  freight  pro  rata,  see  Luke  v.  Lyde,  2  Burr. 
889  (1759) ;  Robinson  v.  Marine  Ins.  Co.,  2  Johns.  323  (1807) ;  Coffin  v.  Storer, 
5  Mass.  252.  4  Am.  Dec.  54  (1809)  ;  Mitchell  v.  Darthez,  2  Bing.  N.  C.  555.  571 
(1836) ;  McGaw  v.  Ocean  Ins.  Co..  23  IMck.  (Mass.)  405  (1839) ;  Smyth  v.  Wright, 
15  Barb.  51  (1852) ;   The  Mohawk,  8  Wall.  163,  19  L.  Ed.  406  (1868). 


Ch.  1)  FREIGHT.  271 

ered.  If  the  whole  is  not  delivered,  no  recovery  can  be  had  for  that 
portion  deHvered.  ChampHn  v.  Rowley,  18  Wend.  187;  Jennings  v. 
Camp,  13  Johns.  94,  7  Am.  Dec.  367 ;   Davis  v.  Pattison,  21  X.  Y.  317. 

The  claim  for  lake  and  Buffalo  charges  stands,  I  think,  upon  a  dif- 
ferent footing.  These  are  stated  in  the  bill  of  lading  at  5%  cents 
a  bushel,  amounting  to  $812.38.  It  must  be  presumed,  as  the  case 
appears,  that  the  plaintiff  advanced  these  charges ;  and,  if  so,  it  be- 
comes subrogated  to  the  rights  of  the  antecedent  carrier.  The  claim 
for  these  charges  was  complete  when  the  plaintiff  received  the  prop- 
erty to  transport,  and  was  not  merged  in  the  condition  requiring  the 
performance  of  the  contract  by  the  plaintiff  to  transport  the  property 
from  Buffalo.  That  contract  was  independent  of  this  claim.  The  bill 
of  lading  is  for  transportation  and  delivery  upon  payment  of  freight 
and  charges ;  but  if  the  plaintiff  had  a  right  to  demand  any  part  of  the 
charges  independent  of  the  bill  of  lading,  that  instrument  would  not 
deprive  him  of  such  right.  We  have  been  referred  to  no  authority 
making  a  liability  upon  such  an  advance  dependent  upon  the  perform- 
ance of  the  contract  for  subsequent  carriage.  If  the  action  had  been 
by  the  lake  carrier  to  recover  for  the  freight  to  Buffalo,  it  is  very  clear 
that  the  defendants  could  not  have  interposed  as  a  defence  that  the 
carrier  from  Buffalo  had  not  performed;  and  why  is  not  the  plaintiff 
entitled  to  the  same  rights  in  respect  to  this  claim  as  the  former  car- 
rier? 

I  am  unable  to  answer  this  question  satisfactorily,  as  the  case  now 
appears.  If  these  views  are  correct,  a  nonsuit  was  improper,  and 
there  must  be  a  new  trial  with  costs  to  abide  event. 

Judgment  reversed. 


BRAITHWAITE  v.  POWER. 

(Supreme  Court  of  North  Dakota,  1891.    1  N.  D.  455,  48  N.  W.  354.) 

Corliss,  C.  J.^^  In  November,  1880,  the  steamer  Eclipse  sailed 
from  Bismarck,  in  the  territory  of  Dakota,  on  an  eventful  voyage  up 
the  Missouri  river,  bound  for  Ft.  Buford,  Mont.,  laden  with  army 
supplies  consigned  to  the  quartermaster  at  that  point.  She  never 
reached  her  destination,  but  was  frozen  in  about  60  miles  from  the 
fort  by  water  and  35  miles  from  it  by  land.  There  has  been  much 
litigation  connected  with  this  vessel.  Some  of  it  has  been  finally  dis- 
posed of  (Rea  V.  Eclipse,  1  Dak.  218,  30  N.  W.  159,  on  appeal  135 
U.  S.  599,  10  Sup.  Ct.  Rep.  873,  31  L.  Ed.  269),  and  some  of  it  awaits 
final  settlement  by  this  court  on  this  appeal. 

The  purpose  of  this  action  was  to  recover  full  freight  for  trans- 
porting these  military  stores  under  an  agreement  to  carry  them  from 
Bismarck  to  Ft.  Buford.  *  *  *  it  is  true  that  the  master  was  at 
liberty  to  forward  the  freight  by  other  means.    1  Pars.  Shipp.  &  Adm. 

13  Parts  of  the  opiuion  are  omitted. 


■272  THE   OBLIGATION   OF   THE   SHII'PEU.  (Part  3 

233,  and  cases  cited.  This  he  was  given  no  opportunity  to  do.  It  'S 
also  true  that  he  might  without  legal  fault  have  awaited  until  the 
opening  of  navigation  in  the  spring  to  resume  his  voyage  and  transport 
the  freight  to  its  destination  in  the  bottom  in  which  it  was  originally 
shipped.  It  was,  of  course,  his  duty  in  the  meantime  to  protect  the 
property,  and  this  it  is  undisputed  he  was  doing  when  it  was  taken 
from  him  by  force  by  a  squad  of  men  from  the  fort,  acting  under  the 
instructions  of  the  consignee.  He  protested  against  this,  insisting 
upon  his  right  to  earn  his  freight  by  completing  the  transportation; 
but  all  his  protests  were  unavailing,  and  he  finally  yielded  only  to 
superior  force,  without  resistance,  it  is  true,  but  this  was  commend- 
able, as  bloodshed  would  have  probably  resulted  had  forcible  opposi- 
tion been  interposed. 

The  master  has  a  lien  on  the  property  to  enable  him  to  earn  his 
freight.  The  moment  the  transportation  begins  the  lien  attaches,^* 
and  is  not  divested  so  long  as  the  master  is  proceeding  not  in  default. 
The  consignor  is  not  bound  to  pay  until  the  transportation  is  complet- 
ed in  accordance  with  the  contract,  but  he  may  not  prevent  the  mas- 
ter's earning  his  freight.  If  he  takes  possession  of  the  goods  short 
of  their  destination,  when  the  master,  not  in  default,  is  willing  and 
able  to  complete  the  transportation,  he  must  pay  full  freight.  He  has 
prevented  or  waived  the  performance  of  the  condition  precedent.  The 
law  therefore  regards  it  as  performed. 

It  is  true  that  in  this  case  the  performance  was  prevented  by  the 
consignee,  and  not  by  the  shipper;  but  in  this  respect  the  consignor 
is  represented  by  the  consignee,  and  the  former  is  responsible  for  the 
acts  of  the  latter.  The  consignor  has  done  his  full  duty  to  the  con- 
signee when  he  has  paid  or  agreed  to  pay  freight  to  a  certain  point. 
If  the  consignee  sees  fit  to  take  the  goods  at  some  other  place  when 
the  transportation  is  only  partially  completed,  and  when  the  master 
is  able  and  willing  to  perform  his  contract,  he,  the  consignee,  can 
make  no  claim  against  the  consignor,  and  the  latter  should  therefore 
pay  the  freight  which  the  master  was  able,  willing,  and  had  a  legal 
right  to  earn.  *  *  *  Jt  cannot  be  said  that  the  master,  by  remov- 
ing the  cargo  from  the  steamer  to  the  river's  bank,  had  abandoned  the 
transportation  of  the  goods. ^^     This  was  done  for  the  safety  of  both 

14  Ace.  Bailey  v.  Damon.  3  Gray  (Mass.)  02  (1S.14).  semble.  And  see  Burgess 
T.  Gun.  .3  Har.'&  .7.  (Md.)  22.5  (1811) ;    Birley  v.  Gladstone,  post,  p.  .301. 

"If  Goods  are  fully  laded  aboard,  and  the  Ship  hath  broke  Ground,  the  Mer- 
chant on  consideration  afterwards  resolves  not  on  the  Adventure,  but  will 
unlade  again ;  by  the  Law  Marine  the  Freight  is  due."  MoUoy,  De  Jure 
Maritinio,  bk.  II.  c.  IV,  4. 

But  to  the  effect  that  the  lien  attaches  when  the  shipowner  receives  the 
goods,  see  Woods  v.  Devin,  13  111.  746,  5Q  Am.  Dec.  483  (1852) ;  Bartlett  v. 
Carnley,  6  Duer  (N.  Y.)  194  (1856) ;  Blowers  v.  One  Wire  Rope  Cable  (D.  C.)  19 
Fed.  444  (1884) ;  Lord  Campbell,  in  Tindall  v.  Taylor,  quoted  post,  p.  273. 
note  16. 

15  Where  a  vessel  intentionally  abandoned  in  storm  at  sea  has  been  brought 
by  salvors  to  safety,  the  shipper  may  have  his  cargo  from  the  salvors  with- 


Ch.  1)  FREIGHT.  273 

the  vessel  and  the  cargo,  and  was  essential  to  their  safety,  as  it  is 
undisputed  that  the  risk  to  both  from  the  breaking  up  of  the  ice  in 
the  spring  would  have  been  greater  with  the  steamer  loaded  than  with 
the  cargo  on  shore. 

It  was  the  undoubted  duty  of  the  master  to  do  precisely  what  he 
did  do  to  protect  the  interests  not  only  of  the  owner  of  the  cargo,  but 
of  the  owner  of  the  boat  also.  "Suppose  a  ship  meets  with  a  calamity 
in  the  course  of  a  voyage,,  and  is  compelled  to  put  into  a  port  to  re- 
pair, and  there  the  cargo  is  required  to  be  unloaded  in  order  to  make 
the  repairs  or  to  insure  its  safety  or  ascertain  and  repair  the  damage 
done  to  it,  would  such  an  unloading  dissolve  the  contract  for  the  voy- 
age? Certainly  not."  Fer  Story,  J.,  in  The  Nathaniel  Hooper,  3 
Sumn.  542-559,  Fed.  Cas.  No.  10,032.  See,  also,  Murray  v.  Insur- 
ance Co.,  4  Biss.  417,  Fed.  Cas.  No.  9,955.  We  hold  that  full  freight 
was  earned.^®     *     *     * 

out  liability  to  the  carrier  for  damages  or  freight,  though  the  abandonment 
was  reasonably  deemed  necessary  and  the  carrier  is  ready  and  willing  to  con- 
vey to  the  original  destination.  '  The  Eliza  Lines,  199  U.  S.  119,  26  Sup.  Ct. 
8.  50  L.  Ed.  115  (1905). 

Compare  Molloy,  De  Jure  Maritimo,  bk.  II.  e.  IV.  13:  "A  Ship  in  her  Voy- 
age happens  to  be  taken  by  an  Enemy,  afterwards  in  Battle  is  retaken  by  an- 
other Ship  in  Amity,  and  I'estitution  is  made,  and  she  proceeds  in  her  Voyage, 
the  Contract  is  not  detennined.  thougli  the  taking  by  the  Enemy  divested  the 
Property  out  of  the  Owners;  yet  by  the  Law  of  War  that  Possession  was  de- 
feasible, and  being  recovered  in  Battle  afterwards,  the  Owners  became  rein- 
vested. So  the  Contract,  by  Fiction  of  Law.  became  as  if  she  had  never  been 
taken,  and  so  the  entire  Freight  becomes  due."  Compare,  also,  cases  in  lat- 
ter part  of  note  11.  ante.  p.  2G7. 

.16  In  Tindall  v.  Taylor,  4  E.  &  B.  219  (1854).  it  was  held  to  be  no  defense  to 
an  action  for  freight  brought  after  the  voyage  was  completed,  that  the  ship- 
per had  demanded  a  return  of  his  goods  before  the  voyage  began,  especially 
where  bills  of  lading  were  outstanding  when  the  demand  was  made.  Ixtrd 
Campbell,  C.  J.,  said:  "We  entirely  agi'ee  to  the  law  as  laid  down  by  Lord 
Tenterden  in  his  treatise  (8th  Ed.)  p.  595,  and  in  Thompson  v.  Trail  [2  C.  & 
P.  334].  when  applied  to  a  general  ship,  that  'a  merchant,  who  has  laden 
goods,  cannot  insist  on  having  them  relanded  and  delivered  to  him  without  pay- 
ing the  freight  that  might  become  due  for  the  carriage  of  them,  and  indem- 
nifying the  master  against  the  consequences  of  any  bill  of  lading  signed 
by  him.'  It  is  argued  that  there  can  be  no  lien  for  freight  not  yet  earned  or 
due :  but,  when  the  goods  were  laden  to  be  carried  on  a  particular  voyage, 
there  was  a  contract  that  the  master  should  carry  them'  in  the  ship  upon  that 
voyage  for  freight ;  and  the  general  rule  is  that  a  contract  once  made  cannot 
be  dissolved  except  with  the  consent  of  both  the  contracting  parties.  By  the 
usage  of  trade,  the  merchant,  if  he  redemands  the  goods  in  a  reasonable  time 
before  the  ship  sails,  is  entitled  to  have  them  delivered  back  to  him,  on  pay- 
ing the  freight  that  might  become  due  for  the  carriage  of  them,  and  on  in- 
demnifying the  master  against  the  consequences  of  any  bills  of  lading  signed 
for  them;  but  these  are  conditions  to  be  performed  before  the  original  con- 
tract can  be  affected  by  the  demand  of  the  goods." 

Compare  Clark  v.  Marsiglia,  1  Denio  (N.  Y.)  317,  43  Am.  Dec.  670  (1845),  an 
action  of  assumpsit  for  work  and  labor  bestowed  upon  paintings  which  de- 
fendant had  delivered  to  plaintiff  to  be  renovated.  The  court  said:  "The 
plaintiff  was  allowed  to  recover  as  though  there  had  been  no  countermand  of 
the  order  ;  and  in  this  the  court  erred.  The  defendant,  by  requiring  the  plain- 
tiff to  stop  work  upon  the  paintings,  violated  his  contract,  and  thereby  in- 
curred a  liability  to  pay  such  damages  as  the  plaintiff  should  sustain.  *  *  • 
Green  Carr. — 18 


274  THE   OBLIGATION   OF  THE  SHIPPER.  (Part  3 

GRISWOLD  V.  NEW  YORK  INS.  CO. 
(Supreme  Court  of  New  York,  1808.    3  Johus.  321,  3  Am.  Dec.  490.) 

This  was  an  action  on  a  policy  of  insurance,  on  the  freight  of  the 
ship  Culloden,  valued  at  $3,300,  on  a  voyage  "at  and  from  New  York 
to  Barcelona,  with  liberty  to  touch  at  Gibraltar."     *     *     * 

The  material  facts  found  by  the  special  verdict,  and  not  stated  in 
the  former  case,  were : 

In  consequence  of  the  vessel's  stranding,  the  whole  of  the  cargo, 
which  consisted  of  2,300  barrels  of  flour,  was  damaged  by  the  sea 
water,  except  between  100  and  200  barrels  on  the  upper  tier;  the 
whole  of  the  flour  so  damaged  was  so  much  wet  and  spoiled  as  to  be 
totally  unfit  to  be  reshipped  for  that  or  any  other  voyage,  and  if  it 
had  been  reshipped  and  carried  to  its  port  of  destination,  it  would 
have  been  worth  nothing,  on  its  arrival  there;  that  if  the  part  which 
was  not  wet  and  damaged  had  been  reshipped  with  the  rest  of  the  car- 
go in  its  damaged  state,  it  would  have  become  heated,  and  more  or 
less  spoiled;  and  that  no  prudent  person  would  have  taken  the  cargo 
as  a  gift,  subject  to  the  expense  of  the  freight  to  Barcelona.     *     *     * 

For  the  plaintiffs,  it  was  contended  that  *  *  *  jj^  ^\^q  Q^ise  of. 
Frith  V.  Barker,  2  Johns.  327,  this  court  decided  that  where  sugar 
had  been  washed  out  of  the  hogsheads,  which  had  fallen  to  pieces,  no 
freight  was  due.  There  is,  in  reason,  no  difference  between  that  and 
the  present  case,  where  the  flour,  if  it  had  arrived  at  Barcelona,  would 
have  been  worth  nothing.     *     *     * 

But  the  plaintiff  had  no  right,  by  obstinately  persisting  in  the  work,  to  make 
the  penalty  upon  the  defendant  greater  than  it  would  otherwise  have  been. 
To  hold  that  one  who  employs  another  to  do  a  piece  of  work  is  bound  to  suf- 
fer it  to  be  done  at  all  events  would  sometimes  lead  to  great  injustice.  A 
man  may  hire  another  to  labor  for  a  year,  and  within  the  year  his  situation 
may  be  such  as  to  render  the  work  entirely  useless  to  him.  The  party  em- 
ployed cannot  persist  in  working,  though  he  is  entitled  to  the  damages  con- 
sequent upon  his  disappointment." 

A  carrier  is  entitled  to  full  freight  from  a  shipper  who  exercises  the  right 
of  stoppage  in  transitu.  See  Pa.  R.  Co.  v.  Am.  Oil  Works,  126  Pa.  48.5,  17 
Atl.  671,  12  Am.  St.  Rep.  870  (18S9).  Or  through  whose  default  cargo  is 
seized  on  the  voyage  by  the  holder  of  a  respondentia  bond.  Cargo  ex  Galaui, 
2  Moo.  (N.  S.)  216  (1863).  A  carrier  is  entitled  to  full  freight  in  priority  to 
an  attaching  creditor  of  the  shipper.  Rucker  v.  Donovan,  13  Kan.  251,  19  Am. 
Rep.  84  (1874).  And  in  priority  to  a  captor  of  the  goods  as  enemy  property, 
if  his  vessel  is  neutral.  The  Copenhagen,  1  C.  Rob.  2S9  (1799).  His  right  to 
the  stipulated  payment  exists  under  a  lump  sum  charter  for  a  voyage,  as  well 
as  under  a  contract  for  freight  in  the  stricter  sense.    Cargo  ex  Galam,  supra. 

A  carrier  is  entitled  only  to  actual  damages  if  the  shipper  prevents  his  earn- 
ing freight  by  not  shipping  any  cargo.  Ashburner  v.  Balcher,  7  N.  Y.  262 
(1852).  Or  by  not  shipping  the  homeward  cargo,  though  the  outward  cargo  has 
been  carried  and  delivered.  Stamforth  v.  Lyall,  7  Bing.  169  (18.30).  Or  by 
refusing  to  redeliver  to  the  carrier,  to  enable  him  to  complete  the  voyage, 
goods  of  which  the  carrier  has  lost  possession  by  stress  of  weather  at  sea, 
and  which  have  come  to  the  shipper's  hands.  The  Eliza  Lines,  114  Fed.  307, 
52  C.  C.  A.  195  (1902),  reversed  on  another  point  in  199  U.  S.  119,  26  Sup.  Ct. 
8,  50  L.  Ed.  115  (1905). 


Ch.   1)  FREIGHT.  275 

Kent,  C.  J./'^  delivered  the  opinion  of  the  court:  *  *  *  But 
it  is  said  that  the  cargo,  if  carried  on  to  Barcelona,  would  not  have 
been  worth  the  freight.  This  is  the  import  of  the  special  verdict. 
Here,  then,  the  question  arises  whether  the  plaintiffs  would  not  have 
had  their  remedy  against  the  shipper,  personally,  for  any  deficiency 
in  the  freight,  or  whether  the  owners  could  discharge  themselves  com- 
pletely by  abandoning  the  damaged  cargo  to  the  plaintiffs,  after  its 
arrival  at  Barcelona. 

This  question  has  not,  hitherto,  received  any  judicial  decision  in 
the  English  courts;  and  it  has  been  frequently  mentioned  in  this 
court  as  a  point  unsettled.  We  are,  therefore,  called  to  examine  the 
question  upon  principle,  and  upon  the  authority  of  the  marine  law  of 
foreign  states. 

The  contract  of  affreightment,  like  other  contracts  of  letting  to 
hire,  binds  the  shipper  personally,  and  the  lien  which  the  shipowner 
has  on  the  goods  conveyed,  is  only  an  additional  security  for  the 
freight.  This  lien  is  not  incompatible  with  the  personal  responsibility 
of  the  shipper,  and  does  not  extinguish  it.  The  consideration  for  the 
freight  is  the  carriage  of  the  article  shipped  on  board,  and  the  state 
or  condition  of  the  article  at  the  end  of  the  voyage  has  nothing  to  do 
with  the  obligation  of  the  contract.  It  requires  a  special  agreement 
to  limit  the  remedy  of  the  carrier  for  his  hire  to  the  goods  conveyed. 
It  cannot  be  deduced  from  the  nature  of  the  undertaking.  The  ship- 
owner performs  his  engagement  when  he  carries  and  delivers  the 
goods.  The  condition  which  was  to  precede  payment  is  then  ful- 
filled. The  right  to  payment  then  becomes  absolute,  and  whether  we 
consider  the  spirit  of  this  particular  contract,  or  compare  it  with  the 
common-law  doctrine  of  carrying  for  hire,  we  cannot  discover  any 
principle  which  makes  the  carrier  an  insurer  of  the  goods  as  to  their 
soundness,  any  more  than  he  is  of  the  price  in  the  market  to  which 
they  are  carried.  If  he  has  conducted  himself  with  fidelity  and  vigi- 
lance in  the  course  of  the  voyage,  he  has  no  concern  with  the  diminu- 
tion of  their  value.  It  may  impair  the  remedy  which  his  lien  af- 
forded, but  it  cannot  affect  his  personal  demand  against  the  shipper. 

This  conclusion  appears  to  be  so  natural  and  just  that  I  cannot 
perceive  any  plausible  ground  upon  which  it  has  been  questioned  or 
denied.  The  weight  of  authority  is  certainly  on  this  side.  The 
French  Ordinance  of  the  Marine  (tit.  du  Fret,  art.  25)  is  explicit  to 
the  point.  This  code  is  not  only  very  high  evidence  of  what  was  then 
the  general  usage  of  trade,  but  from  its  comprehensive  plan,  and 
masterly  execution,  it  has  long  been  respected  as  a  digest  of  the  mari- 
time law  of  all  the  commercial  nations  of  Europe.  Valin,  in  his  com- 
mentary upon  this  ordinance,  calls  in  question  the  equity  of  the  rule; 
but  his  reasoning,  when  we  apply  it  to  the  true  construction  of  the 

17  Parts  of  the  statement  ot  facts,  of  the  argumeut  of  counsel,  and  of  the 
opinion  are  omitted. 


276  THE   OBLIGATION   OF   THE   SHIPPER.  (Part  3 

contract,  is  weak  and  superficial,  and  it  has  been  exposed  and  an- 
swered, and  the  solidity  of  the  rule  vindicated,  by  a  superior  and  more 
luminous  jurist.     Valin,  tom.  1.  670.     Pothier,  Charte-Partie,  No.  59. 

But,  though  this  question  has  never  been  settled  at  Westminster 
Hall,  Mr.  Abbot  (page  243)  says  that  the  assumed  right  to  abandon 
deteriorated  goods  at  the  port  of  discharge  is  not,  in  point  of  prac- 
tice, claimed  in  that  country,  and  his  opinion  is  evidently  in  favor  of 
die  rule  as  established  in  France.  *  *  *  The  court  are  accord- 
ingly of  opinion  that  judgment  must  be  rendered  for  the  defendants. 

Judgment  for  the  defendants.^* 


ASFAR  &  CO.  v.  BLUNDELU 

(High  Court  of  Justice,  Queen's  Bench  Division.    [1895]  2  Q.  B.  19G.) 

Action  tried  before  Mathew,  J.,  without  a  jury.  *  *  * 
Mathew,  J.^°  This  is  an  action  brought  to  recover  for  a  total 
loss  on  a  policy  on  profit  on  charter.  *  *  *  The  ship  took  her  cargo 
on  board  and  sailed  for  the  discharging  dock  in  the  Thames,  but  be- 
fore she  reached  it  she  came  into  collision  with  another  vessel  and 
was  sunk,  and  the  cargo  remained  under  water  during  three  tides. 
A  large  part  of  the  cargo,  as  much  as  700  tons,  consisted  of  dates. 
The  vessel  was  raised  and  taken  into  dock. 

The  first  question  to  be  decided  in  this  case  is  whether  any  freight 
was  payable  in  respect  of  the  dates.  If  it  was,  then  there  was  a  profit 
on  the  charter  freight.  If  none  was  payable,  there  was  no  profit. 
Whether  or  not  freight  was  payable  on  the  dates  depended  upon  their 
condition.  The  evidence  went  to  show  that  they  wxre  saturated  with 
sewage,  and  were  in  a  state  of  fermentation  and  putrefaction,  and 
were  unquestionably  unmerchantable  as  dates.*  It  was,  indeed,  sug- 
gested that  they  still  retained  the  appearance  of  dates;  but  if  by  that 
suggestion  was  meant  that  nothing  less  than  total  destruction  of  the 
goods  would  disentitle  the  shipowner  to  receive  his  freight,  I  can  only 
say  that  that  ancient  view  of  the  matter,  which  was  put  forward  in 
Cocking  v.  Fraser,  reported  in  Park  on  Insurance  (8th  Ed.)  vol.  1, 

1 8  Ace.  Story.  J.,  in  Jordan  v.  Warren  Ins.  Co..  1  Story,  342.  Fed.  Cas.  Xo. 
7..'524  (1840) ;  Hugg  v.  Augusta  Co..  7  How.  595,  12  L.  Ed.  834  (1849) ;  Dakin 
V.  Oxley,  15  C.  B.  (N.  S.)  646  (18G4). 

"Nevertheless,  if  the  merchants  shall  leave  all  the  goods  in  the  hands  of 
the  managing  owner  of  the  ship  or  vessel,  which  he  has  brought  in  his  ship, 
for  the  freight  which  they  ought  to  pay  him,  the  managing  owner  of  the  ship  or 
vessel  has  to  accept  them,  and  cannot  exact  anything  more  from  them.  And 
*  *  *  no  part  owner  can  object  or  dispute  in  any  way,  for  he  must  take 
his  share  of  the  loss  as  of  the  gain,  if  God  gives  it."  Consulate  of  the  Sea, 
c.  225. 

19  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 

*  It  appeared  in  the  evidence  that  the  dates  were  sold  for  £2.400  for  the 
purpose  of  distillation  into  spirit,  and  were  transhipped  and  exported. 


Ch.  1)  FREIGHT.  277 

p.  2^7,  cannot  be  treated  as  law  at  the  present  day.  Total  destruc- 
tion is  not  necessary.  Destruction  of  the  merchantable  character  of 
the  goods  is  sufficient;  and  in  accordance  with  the  principle  recog- 
nized in  Roux  V.  Salvador,  3  Bing.  (N.  C.)  266,  Dakin  v.  Oxley,  15 
C.  B.  (N.  S.)  646,  and  Duthie  v.  Hilton,  L.  R.  4  C.  P.  138,  I  hold  that 
the  plaintiflfs  were  not  entitled  to  receive  freight  in  respect  of  these 
dates.-"     *    *    * 


LIBBY  V.  GAGE. 

(Supreme  .Judicial  Court  of  Massachusetts,  Suffollv.  18G7.     14  Allen.  2G1.) 

The  first  of  these  actions  was  an  action  of  contract  brought  by  the 
owners  of  the  brig  Cascatelle  against  Charles  P.  Gage  &  Co.,  to 
recover  the  freight  on  a  cargo  of  ice,  shipped  by  the  defendants  at 
Richmond,  Ale.,  for  Alobile,  Ala.,  on  board  the  plaintiffs'  vessel,  under 
a  bill  of  lading  acknowledging  the  receipt  of  "four  hundred  and  six 
tons  of  ice;  it  being  understood  and  agreed  as  follows:  That  as  ice 
is  a  perishable  article,  the  hold  of  the  vessel  where  it  is  placed  shall 

20  As  to  what  constitutes  arrival  in  specie,  see,  also.  Duthie  v.  Hilton,  L. 
R.  4  C.  P.  138  (18G8).  cement  solidified:  Garrett  v.  Melhuish,  4  Jur.  (X.  S.) 
943  (18.58),  bricks  crushed;  Dickson  v.  Buchanan,  13  Sc.  L.  R.  401  (1876),  wire 
rusted. 

In  Dakin  v.  Oxley,  15  C.  B.  (N.  S.)  G4G  (18G4),  Willes.  J.,  said:  "In  the 
case  of  an  actual  loss  or  destruction  by  sea  damage  of  so  much  of  the  cargo 
that  no  substantial  part  of  it  remains,  as,  if  sugar  in  mats,  shipped  as  sugar 
and  paying  so  much  per  ton.  is  washed  away,  so  that  only  a  few  ounces  re- 
main, and  the  mats  are  worthless,  the  question  would  arise  whether,  practi- 
cally speaking,  any  part  of  the  cargo  contracted  to  be  carried  has  arrived. 
*  *  *  Where  the  quantity  remains  unchanged,  but  by  sea  damage  the 
goods  have  been  deteriorated  in  quality,  the  question  of  identity  arises  in  a 
different  form,  as,  for  instance,  where  a  valuable  picture  has  arrived  as  a 
I)iece  of  spoilt  canvas,  cloth  in  rags,  or  crockery  in  broken  shreds,  iron  all  or 
almost  all  rust,  rice  fermented,  or  hides  rotten.  In  l)oth  classes  of  cases, 
whether  of  loss  of  quantity  or  change  in  quality,  the  proper  course  seems  to 
be  the  same,  viz.,  to  ascertain  from  the  terms  of  the  contract,  construed  by 
mercantile  usage,  if  any,  what  was  the  thing  for  the  carriage  of  which  freight 
was  to  be  paid,  and  by  the  aid  of  a  jury  to  determine  whether  that  thing, 
or  any  and  how  much  of  it,  has  substantially  arrived.  If  it  has  arrived,  though 
damaged,  the  freight  is  payable  by  the  ordinary  terms  of  the  charter  party  ; 
and  the  question  of  fortuitous  damage  must  be  settled  with  the  underwriters, 
and  that  of  culpable  damage  in  a  distinct  proceeding  for  such  damage  against 
the  ship  captain  or  owners.  There  would  be  apparent  justice  in  allowing  dam- 
age of  the  latter  sort  to  be  set  off  or  deducted  in  an  action  for  freight;  and 
this  is  allowed  In  some  (at  least)  of  the  United  States.  1  Parsons  on  Mer- 
cantile Law,  172,  note.  But  our  law  does  not  allow  deduction  in  that  form ; 
and.  as  at  present  administered,  for  the  sake,  perhaps,  of  speedy  settlement  of 
freight  and  other  liquidated  demands,  it  affords  the  injured  party  a  remedy 
by  cross-action  only." 

In  the  United  States,  damage  for  which  a  carrier  is  liable  may  be  set  off 
in  his  action  for  freight,  or  applied  in  reduction  of  his  lien.  Boggs  v.  Martin, 
52  Ky.  239  (1852) :  Bancroft  v.  Peters.  4  :\Iich.  619  (1857) ;  The  Tangier.  32 
Fed.  230  (1887) :  Miami  Powder  Co.  v.  Port  Royal,  etc.,  Ry.  Co.,  47  S.  C.  324, 
25  S.  E.  153,  58  Am.  St.  Rep.  880  (1896);  Mo.  Pac.  Ry.  Co.  v.  Peru,  etc.,  Co., 
78  Kan.  295,  302,  85  Pac.  408,  87  Pac.  80  (190G). 


278  THE   OBLIGATION   OF   THE   SHIPPER.  (Part  3 

not  be  opened  or  exposed  to  the  air,  unless  by  stress  of  weather  or 
wants  of  the  vessel,  in  which  case  due  protest  shall  be  made,  and  an 
account  kept  of  all  ice  thrown  overboard  in  case  of  jettison;  that 
the  vessel  shall  be  kept  regularly  pumped  out  during  the  passage; 
that  no  fish,  meat  or  other  articles  shall  be  placed  in  or  with  the  ice 
without  the  consent  of  the  shipper.  Which  is  to  be  delivered  in  like 
good  order  and  condition,  with  all  due  diligence  (excepting  what  may 
be  lost  by  the  natural  waste  of  the  article)  at  the  aforesaid  port  of 
Mobile,  Ala.  (the  dangers  of  the  sea  only  excepted),  unto  Messrs. 
Charles  P.  Gage  &  Co.,  or  to  their  assigns,  he  or  they  paying  freight 
for  the  said  ice  at  seven  dollars  fifty  cents  per  ton  with  average  ac- 
customed." 

The  ice  was  a  full  cargo,  and  was  stowed  by  the  shippers  in  the  hold 
and  around  the  mast.  The  brig  sailed  from  Richmond  May  8,  1866, 
and  while  prosecuting  her  voyage  lost  her  foremast  and  sufifered 
other  damage,  which  made  it  necessary  for  her  to  put  into  New  York 
for  repairs,  which  she  did  May  28th.  In  making  the  repairs,  it  be- 
came necessary  to  take  out  the  old  mast  and  put  in  a  new  one,  and 
there  was  some  melting  and  loss  of  ice  occasioned  by  admitting  the 
air  into  the  hole  where  the  mast  was  taken  out,  as  also  by  the  delay 
occasioned  by  putting  into  New  York  for  repairs.  The  vessel  sailed 
from  New  York  June  12th,  and  arrived  at  Mobile  July  14th. 

In  an  ordinary  voyage  from  Richmond  to  Mobile,  a  cargo  of  ice 
would  not  usually  waste  more  than  25  per  cent. ;  in  this  case,  there 
was  only  about  50  per  cent,  of  the  ice  delivered.  The  custom  in  regard 
to  ice  freights  on  ordinary  voyages  is  to  pay  freight  on  the  amount 
of  ice  put  on  board,  although  the  whole  amount  put  on  board  is  never 
delivered,  as  ice  is  always  wasted  somewhat  on  a  voyage. 

The  parties  submitted  the  case  above  stated  to  the  decision  of  the 
court,  and  agreed  that  if  the  plaintiffs  were  entitled  to  recover  the 
whole  amount  of  the  freight  money  as  by  the  bill  of  lading,  judgment 
should  be  rendered  for  them  accordingly;  if  not.  the  action  should 
be  referred  to  an  assessor  to  determine  the  amount  due  under  the  di- 
rection of  the  court. 

Gray,  J.  This  action  is  brought  by  the  owners  of  a  ship  against 
the  shippers  and  consignees  of  the  cargo  to  recover  freight  according 
to  the  terms  of  the  bill  of  lading.  The  question  whether  any  deduction 
is  to  be  made  from  the  plaintiffs'  claim  is  to  be  determined  by  the 
application  of  well-settled  principles  of  law  to  the  peculiar  facts  of 
the  case. 

The  general  rule  is  that  the  shipowner,  in  order  to  earn  his  freight, 
must  perform  his  contract  by  carrying  the  goods  to  and  delivering 
them  at  the  port  of  destination,  unless  such  performance  is  prevented 
or  waived  by  the  act  of  the  consignee,  or  unless  the  goods  perish  by 
an  intrinsic  principle  of  decay  naturally  inherent  in  the  commodity 
itself,  the  risk  of  which,  whether  active  in  every  situation,  or  only 
in  the  confinement  and  closeness  of  a  ship,  rests  upon  the  owner  of 


Ch.  1)  FREIGHT.  279 

the  goods.  Abbott  on  Shipping-  (7th  Ed.)  406,  428;  3  Kent,  Com. 
(6th  Ed.)  219,  228;  The  Nathaniel  Hooper,  3  Sumn.  554,  Fed.  Cas. 
No.  10,032;  Clark  v.  Barnwell,  12  How.  282,  13  L.  Ed.  985.  Perils 
of  the  sea  are  ordinarily  excepted,  as  they  are  in  this  bill  of  lading. 
The  carrier,  not  insuring  the  goods  either  against  perils  of  the  sea 
or  against  their  own  decay  or  evaporation,  is  entitled  to  his  freight 
upon  delivering  them  at  the  port  of  destination,  however  much  dimin- 
ished in  bulk  or  value,  either  by  perils  of  the  sea,  or  by  intrinsic 
defect,  without  his  fault.  3  Kent,  Com.  225;  McGaw  v.  Ocean  Ins. 
Co.,  23  Pick.  412,  413 ;  Lord  v.  Neptune  Ins.  Co.,  10  Gray,  114,  119 ; 
Steelman  v.  Taylor  (1856)  3  Ware,  52,  Fed.  Cas.  No.  13,349,  19  Law 
Rep.  36;  The  Norway,  3  Moore,  P.  C.  (N.  S.)  245. 

But  although  he  does  not  assume  the  risk  of  perils  of  the  sea,  yet 
if  the  goods  are  wholly  lost  by  such  perils,  or  by  jettison  to  avoid 
them,  he  does  not  earn  the  freight,  because  he  does  not  deliver  the 
goods  at  the  port  of  destination.  And  a  loss  by  the  fault  of  the  car- 
rier or  his  servants  of  any  part  of  goods  shipped  under  an  entire  con- 
tract of  affreightment  will  defeat  his  right  to  recover  any  freight. 
Sayward  v.  Stevens,  3  Gray,  97.^^  The  substance  and  effect  of  these 
principles  may  be  stated  thus :  Neither  party  insures  the  other  against 
perils  of  the  sea ;  the  shipper  takes  the  risk  of  intrinsic  decay  of  the 
goods ;  and  the  carrier  is  responsible  for  his  own  negligence.  Under 
one  entire  contract  of  affreightment  therefore,  if  the  goods  are  wholly 
lost  by  perils  of  the  sea,  or  the  whole  or  part  of  them  is  lost  by  the 
fault  of  the  carrier,  he  can  recover  no  freight;  but  if  part  only  of 
the  goods  is  lost  by  perils  of  the  sea,^^  or  a  part  or  even  the  whole 
perishes  by  intrinsic  decay,  he  is  entitled  to  full  freight. 

21  But  see  The  Tangier  (D.  C.)  32  Fed.  230,  2.32  (1887);  The  Norway,  12 
Moo.  (N.  S.)  24.5,  2G6  (186.5) ;  Carver,  Carriage  by  Sea,  §  550.  In  Mercliaut 
Shipping  Co.  v.  Armitage,  L.  R.  9  Q.  B.  99  (1873),  Bramwell  B.,  said:  "Sup- 
pose that  £5  worth  of  these  goods  had  been  stolen  by  the  crew,  that  would  not 
be  within  the  exceptions ;  then  would  it  have  been  possible  to  have  said  that 
the  whole  lump  sum  was  lost?  Would  not  the  common  rule  have  applied? 
The  defendants  would  have  had  to  pay  the  freight  and  seek  their  remedy  by 
a  cross  action." 

2  2  In  Willett  V.  Phillips.  8  Ben.  459,  Fed.  Cas.  No.  17.G&3  (1876),  the  char- 
ter party  provided  that  the  charterer  should  load  a  full  cargo  and  pay  as 
charter  hire  .$3,000  "in  cash  on  the  correct  delivery  of  the  cargo."  Blatchford, 
J.,  said:  "But  even  on  the  assumption  that  perils  of  the  sea  caused  the  non- 
delivery of  the  cargo  which  was  not  delivered,  the  libelants  are  not  entitled 
to  recover.  The  contract  was  a  unit.  Being  a  contract  for  the  conveyance  of 
merchandise  for  an  agreed  price,  it  was  entire  and  indivisible,  and.  as  the  ves- 
sel did  not  completely  perform  it,  she  is  not  entitled  to  any  part  of  the  .$3,000. 
The  freight  was  not  earned  by  a  strict  performance  of  the  contract,  and  there- 
fore no  freight  becomes  due." 

In  Robinson  v.  Knights,  L.  R.  8  C.  P.  465  (1873),  a  ship  was  chartered  to 
carry  and  deliver  a  full  cargo  "on  being  paid  freight  as  follows ;  a  lump  sum 
of  £315."  Part  of  the  cargo  was  lost  by  excepted  sea  perils.  The  shipowner 
was  held  to  be  entitled  to  the  full  sum.  Brett,  J.,  said:  "What  is  really  paid 
for  is  the  use  of  the  ship  for  carrying  such  cargo  as  the  freighter  chooses  to 
put  on  board.  *  *  *  That  is  to  say,  the  freight  is  a  gross  sum  for  the  use 
of  the  entire  ship,  instead  of  being  paid  in  respect  of  each  part  of  the  cargo." 


280  THE   OBLIGATION   OF   THE   SHIPPER.  (Part  3 

But  treating  the  contract  of  affreightment  as  entire  and  indivisible 
often  produces  hardship  and  injustice;  either  by  charging  the  owner 
of  goods  with  full  freight,  when  the  greater  part  of  the  goods  has  been 
lost  by  perils  of  the  sea,  and  but  a  small  remnant  is  finally  delivered ; 
or  by  refusing  to  allow  any  freight  to  the  owner  of  the  ship,  when 
only  a  small  portion  of  the  goods  has  been  lost  or  omitted  to  be  car- 
ried by  his  fault,  and  he  safely  carries  the  residue  to  the  port  of  des- 
tination, but  the  consignee  there  refuses  to  receive  it  or  to  pay  freight. 
The  parties  therefore,  by  the  terms  of  the  charter  party  or  bill  of  lad- 
ing, often  modify  the  contract  by  providing  that  freight  shall  be  paid 
by  the  cask,  or  package,  or  ton ;  and  when  the  parties  have  thus  made 
divisible  what  would  otherwise  be  entire,  so  many  casks,  packages  or 
tons  as  the  shipowner  does  not  take  and  carry  according  to  his  con- 
tract, or  as  are  lost  by  perils  of  the  sea,  may  be  deducted,  and  freight 
recovered  for  those  remaining,  and  for  those  only.-^  3  Kent,  Com. 
227;    Bigelow,  J.,  in  Sayward  v.  Stevens,  3  Gray,  103. 

Thus  in  Ritchie  v.  Atkinson,  10  East,  295,  the  master  of  the  ship 
agreed  by  charter  party  to  take  and  carry  from  St.  Petersburg  to 
London  a  complete  cargo  of  iron  and  hemp  at  certain  rates  per  ton, 
and  actually  took  and  carried  an  incomplete  cargo  of  those  articles, 
and  was  held  to  be  entitled  to  recover  freight  at  the  stipulated  rates 
for  the  amount  carried  and  delivered,  leaving  the  shipper  to  his  rem- 
edy by  a  cross  action  for  the  short  delivery.  And  in  Frith  v.  Barker, 
2  Johns.  (N.  Y.)  327,  190  hogsheads  of  sugar  were  shipped  at  the 
rate  of  freight,  as  stated  in  the  bill  of  lading,  of  $7  per  hogshead; 

He  referred  to  the  case  of  The  Norway,  Brown  &  Lush.  404,  .3  Moo.  P.  C.  (N. 
•S.)  24.^  (lSG."i).  in  which  Knight  Bruce,  L.  J.,  said:  "Although  the  lump  sum 
is  called  freight  in  the  charter  party  and  hills  of  lading,  we  think  it  is  not 
properly  so  called,  hut  that  it  is  more  properly  a  sum  in  the  nature  of  a  rent 
to  be  paid  for  the  use  and  hire  of  the  ship  on  the  agreed  voyages." 

"No  doubt,  where  a  lump  sum  is  specilietl  as  the  freight  to  be  paid  on  de- 
livery, whether  by  charter  party  or  bill  of  lading,  the  consignee,  accepting 
the  goods,  must  pay  the  stipulated  sum  without  detluctiou  for  what  may  be 
lost  without  the  fault  of  the  ship."  Brown,  J.,  in  Gibson  v.  Brown  (D.  C.)  44 
Fed.  r)S  (1890).  See.  also.  The  Tangier  (D.  C.)  32  Fed.  2,30  (1887) ;  Ritchie 
V.  Atkinson.  10  East,  295  (1808),  stated  in  the  text. 

In  the  following  cases  charter  freight,  payable  according  to  weight  or 
measurement  of  cargo  shijiped.  was  lield  payable  in  full,  as  a  lump  sum, 
though  part  of  the  cargo  was  lost:  The  Defiance,  (i  Ben.  162.  Fed.  Cas.  No. 
3.740  (1872),  112  cords  of  wood,  port  of  loading  inspection,  at  $4  per  cord; 
Harrison  v.  1.000  Bags  of  Sugar  (D.  C.)  44  Fed.  086  (1890) ;  Christie  v.  Davis 
Co.  (D.  C.)  95  Fed.  837  (1899). 

In  the  following  cases  common  carriers  by  water  recovered  full  bill  of  lading 
freight,  though  neither  ship  nor  goods  reached  destination:  The  Queensmore, 
53  Fed.  1022.  4  C.  C.  A.  157  (1893),  cattle  at  80  shillings  per  head  shipped, 
though  lost  in  any  manner  whatsoever,  payable  in  Liverpool  on  arrival  of 
ship ;  Portland  Flouring  Mills  Co.  v.  Marine  Ins.  Co.,  130  Fed.  800,  65  C.  C.  A. 
344  (1904),  freight  to  be  earned,  steamer  or  goods  lost  or  not  lost. 

2  3  Ace.  Hinsdell  v.  Weed.  5  Denio  (N.  Y.)  172  (1848),  freight  of  $83  for  a  ship- 
ment of  barrels  of  flour  held  apportionable;  Price  v.  Hartshorn.  44  N.  Y.  94, 
4  Am.  Rep.  645  (1870) :  The  Marcella,  1  Woods,  302.  Fed.  Cas.  No.  13.797 
(1873);  Christie  v.  Davis  Co.  (D.  C.)  95  Fed.  837  (1899).  And  see  Edward 
Hines  Co.  v.  Chamberlain,  118  Fed.  716,  55  C.  C.  A.  236  (1902). 


Ch.  1)  FREIGHT.  281 

on  the  voyage  the  ship  met  with  perils  of  the  sea,  by  which  all  the 
sugar  was  washed  out  of  50  of  the  casks,  and  the  remaining  140  casks 
of  sugar  arrived  and  were  delivered ;  and  it  was  held  that  freight 
could  be  recovered  on  the  latter  only. 

The  bill  of  lading  of  this  ice  fixes  the  rate  of  freight  by  the  ton, 
and  contains  no  other  provision  to  modify  the  application  of  the  gen- 
eral rules  of  law.  The  stipulation  which  recognizes  the  perishable 
nature  of  the  article,  and  provides  that  "the  hold  of  the  vessel  in 
which  it  is  placed  shall  not  be  opened  or  exposed  to  the  air,  unless 
by  stress  of  weather  or  wants  of  the  vessel,  in  which  case  due  protest 
shall  be  made,  and  an  account  kept  of  all  ice  thrown  overboard  in  case 
of  jettison,"  raises  no  implication  that  if  the  ice  is  so  exposed,  and 
thereby  diminished  in  bulk,  freight  should  be  paid  on  the  amount  so 
lost.  The  exception  of  "natural  waste"  does  not  cover  all  waste  or 
melting  from  whatever  cause,  but  only  the  waste  arising  from  the  very 
nature  of  the  ice  itself,  and  merely  afifirms  what  the  law  would  other- 
wise have  implied.  The  custom  to  pay  freight  on  the  amount  of  ice 
put  on  board,  without  deduction  for  the  necessary  waste  on  the  voy- 
age, accords  with  the  terms  of  the  contract  and  with  the  general  rules 
of  law. 

It  is  agreed  that  in  this  case  the  melting  and  loss  of  ice  were  oc- 
casioned in  part  by  the  delay  resulting  from  putting  into  port  in  con- 
sequence of  perils  of  the  sea,  and  in  part  by  admitting  the  air  into 
the  hole  where  the  mast  was  taken  out.  The  waste,  decay  or  de- 
terioration of  goods  in  the  hold  of  a  vessel,  though  aggravated  by 
protraction  of  the  voyage  in  consequence  of  meeting  with  perils  of 
the  sea,  is  still,  if  those  perils  do  not  otherwise  operate  upon  the  goods, 
attributable  to  the  nature  of  the  goods,  and  not  to  the  perils  of  the 
sea,  as  the  proximate  and  efficient  cause.  Baker  v.  IManuf.  Ins.  Co., 
12  Gray,  603;  Clark  v.  Barnwell,  12  How.  282,  283.  13  L.  Ed.  985. 
It  is  not  pretended  that  the  sea  broke  into  the  hold  or  in  any  way. 
directly  affected  the  ice  so  as  to  diminish  its  quantity.  The  delay 
in  the  port  of  repair,  like  a  retardation  of  the  voyage  by  baffling  winds, 
simply  afforded  more  time  for  the  ice  to  diminish,  from  its  inherent 
liability  to  waste  away ;  and  such  diminution  during  such  delay,  as 
well  as  on  the  voyage  before  and  afterwards,  was  natural  waste,  which 
was  at  the  risk  of  the  owner  of  the  cargo,  and  did  not  affect  the  ship- 
owner's claim  for  freight. 

But  the  diminution  in  bulk  from  necessary  exposure  to  the  air  and 
climate,  in  order  to  repair  injuries  which  the  ship  had  suffered  from 
perils  of  the  sea,  was  directly  attributable  to  such  perils,  as  much  as 
if  a  portion  of  the  cargo  had  been  washed  out  by  the  waves  or  thrown 
overboard  to  enable  the  ship  to  ride  safely  in  a  storm.  The  excep- 
tion of  "natural  waste"  does  not  cover  the  destruction  of  ice  by  this 
extraordinary  exposure  for  the  purpose  of  making  necessary  repairs ; 
just  as  it  has  been  held  by  this  court  that  insurers  declared  in  the 
policy  to  be  "not  liable  for  ice  melting  in  consequence  of  putting  into 


282  THE   OBLIGATION   OF   THE   SHIPPER.  (Part  3 

port"  were  not  thereby  exempted  from  loss  by  the  necessary  unlading 
of  the  ice  to  examine  and  repair  the  vessel.  Tudor  v.  New  England 
Ins.  Co.,  13  Cush.  554.  If  indeed  this  contract  of  affreightment  had 
been  entire  and  the  freight  estimated  at  a  gross  sum  for  the  whole 
cargo,  this  diminution  also  would  not  have  reduced  the  amount  of 
freight  due  after  transportation  of  the  residue  to  the  port  of  destina- 
tion and  delivering  it  there.  But  the  freight  was  payable  by  the  ton, 
and  the  contract  of  aft'reightment  thus  made  divisible ;  and  therefore 
on  that  portion  of  the  cargo  which  was  lost  by  opening  the  hold,  and 
for  that  reason  not  carried  to  the  port  of  destination,  no  freight  is  due. 

As  the  waste  on  the  voyage  from  the  port  of  departure  to  the  port 
of  repair  did  not  affect  the  claim  for  freight,  the  cargo  is  to  be  esti- 
mated at  the  latter  port  as  if  it  had  still  been  406  tons  complete;  then 
such  proportion  of  that  number  of  tons,  as  the  amount  of  ice  melted 
and  lost  by  the  opening  of  the  hold  for  the  purpose  of  necessary  re- 
pairs of  the  ship  bears  to  the  quantity  of  ice  on  board  when  such  re- 
pairs were  begun,  is  to  be  deducted  from  the  whole  number  of  40G 
tons ;  and  on  the  residue,  so  computed,  inasmuch  as  no  further  de- 
duction is  to  be  made  for  the  waste  of  the  ice  on  the  completion  of 
the  voyage,  freight  is  payable  at  the  stipulated  rate  of  seven  and  a 
half  dollars  a  ton. 

For  the  purpose  of  making  this  computation,  and  in  accordance  with 
the  agreement  of  parties,  this  case  is  referred  to  an  assessor.-* 

24  "If  you  have  chartered  your  ship  to  carry  slaves,  no  payment  is  due 
you  for  the  carriage  of  a  slave  who  has  died  on  board. 

"Paulus:  Not  so.  The  question  is  what  was  the  transaction?  whether  pay- 
ment was  to  lie  made  for  those  placed  on  board  or  for  those  carried.  And  if 
this  cannot  be  shown,  it  will  suffice  for  the  shipmaster  to  show  that  the 
slave  was  put  on  board." 

Digest,  lib.  xiv,  tit.  ii,  fr.  10. 

In  the  following  cases  freight  was  allowed  on  goods  which  had  perished 
bv  reason  of  their  Intrinsic  character:  Nelson  v.  Stephenson,  5  Duer  (N.  Y.) 
538  (1S56) ;  Steelman  v.  Taylor.  3  Ware,  52,  Fed.  Cas.  No.  13.349  (1856) ;  The 
Cuba,  3  Ware,  260,  Fed.  Cas.  No.  3,458  (1860).  Compare  Linklater  v.  Howell 
(D.  C.)  88  Fed.  526  (1898).    Contra:    Carver,  Carriage  by  Sea,  §  548. 

In  The  Fortuna,  Edw.  Adm.  56  (1809),  Sir  W.  Scott  said  that  a  shipowner 
"could  have  no  right  [to  freight]  but  upon  an  entire  execution  of  the  contract, 
or  such  an  execution  as  he  could  effect  consistently  with  the  incapacities  un- 
der which  the  cargo  might  labor.  Where  such  an  incapacity  on  the  part  of 
the  cargo  occurs,  he  has  done  his  utmost  to  caiTy  the  contract  on  to  its  con- 
summation ;  it  is  a  final  execution  as  to  the  owner  of  the  ship,  inasmuch  as 
it  does  not  lie  with  him  that  the  contract  is  not  performed.  On  the  other 
hand,  where  the  vessel  itself  Is  incapacitated,  no  right  accrues  to  her  owner ; 
he  can  have  no  right  to  demand  that  for  which  he  stipulated  only  on  the  per- 
formance of  his  engagement.  The  general  principle  has  been  stated  very  cor- 
rectly, that  where  a  neutral  vessel  is  brought  in,  on  account  of  the  cargo,  the 
ship  is  discharged  with  full  freight,  because  no  blame  attaches  to  her :  she 
is  ready  and  able  to  proceed  to  the  completion  of  the  voyage,  and  is  only  stop- 
ped by  the  incapacity  of  the  cargo." 

In  Gibson  v.  Sturge,  10  Ex.  622  (1855),  a  cargo  of  wheat  from  Odessa  to 
Gloucester  was  by  the  terms  of  the  bill  of  lading  to  be  delivered  on  payment  of 
freight  at  a  certain  rate  per  quarter.  Its  bulk  on  delivery  exceeded  its  bulk 
at  shipment  by  nearly  5  per  cent,  apparently  because  it  had  absorbed  moisture 
on  the  voyage.     It  was  held  by  a  majority  of  the  court  that  freight  was  due 


Ch.  1)  FREIGHT.  283 

BROWN  V.  HARRIS. 
(Supreme  Judicial  Court  of  Massachusetts,  1854.     2  Gray,  359.) 

Thomas,  J.^^  The  agreed  statement  of  facts  shows  a  contract  by 
the  defendant  to  transport  the  plaintiff  as  a  passenger  in  the  defend- 
ant's ship,  from  San  Francisco  to  Panama,  for  the 'sum  of  $50,  paid 
in  advance.  It  shows  also  a  failure  to  perform  that  contract,  and  that 
such  failure  was  owing  solely  to  the  wrecking  of  the  ship  by  a  storm, 
and  the  consequent  breaking  up  of  the  voyage.  The  plaintiff'  was  put 
on  shore  at  Mazatlan,  less  than  half  the  distance  to  the  port  of  destina- 
tion, and  there  left ;  no  provision  having  been  made  by  the  defendant 
to  send  him  to  Panama  by  any  other  ship,  nor  any  offer  to  do  so.  The 
question  is,  can  the  plaintiff  recover  the  whole  or  any  part  of  the  pas- 
sage money  so  paid?  And  we  are  of  opinion  that  he  can  recover  the 
whole. 

The  rule  is  well  settled  as  to  freight  for  the  carriage  of  goods.  If 
freight  be  paid  in  advance,  and  the  goods  not  carried  by  reason  of 
any  event,  not  imputable  to  the  shipper,  it  is  to  be  repaid,  unless  there 
be  a  special  agreement  to  the  contrary ;  and  such  agreement  cannot  be 
inferred  from  the  mere  fact  of  payment  in  advance.  The  contract  is 
entire,  and  unless  the  voyage  be  fully  performed  by  a  delivery  at  the 
port  of  destination,  nothing  has  been  earned.     *     *     * 

Passage  money  and  freight  are  governed  by  the  same  rules.  Indeed 
freight,  in  its  most  extensive  sense,  is  applied  to  all  compensation  for 
the  use  of  ships,  including  transportation  of  passengers ;  and  for  all 
purposes,  except  lien,  Lord  Ellenborough  says,  they  seem  to  be  the 
same  thing.  Mulloy  v.  Backer,  5  East,  321.  See,  also,  Rowland  v. 
Brig  Lavinia,  1  Pet.  Adm.  123,  Fed.  Cas.  No.  6,797;  3  Kent,  Com. 
219;  Abbott  on  Shipping  (5th  Am.  Ed.)  405,  note;  Angell  on  Car- 
riers, §  391;   Watson  v.  Duykinck,  3  Johns.  (N.  Y.)  335. 

No  question  is  open  upon  the  agreed  statement  of  facts  as  to  the 

only  upon  the  bulk  shipped.  Alderson,  B.,  said:  "Now,  if  the  rule  be,  that,  in 
the"^  absence  of  any  special  stipulations,  the  freight  is  due  for  that  quantity 
which  has  been  carried  for  the  whole  voyage,  as  I  think  it  is.  it  seems  to  me 
to  follow  as  a  necessai-y  consequence,  that  the  less  amount  alone  falls  within 
that  category.  It  is  ti-ue,  perhaps,  that  the  same  individual  grains  are  car- 
ried throughout,  but  they  measure  more  in  bulk  on  their  arrival  than  at  their 
loading.  The  case  seems  to  me  to  be  in  close  analogy  to  that  of  the  pregnant 
females  mentioned  in  Molloy,  bk.  2.  c.  4.  §  8,  where  no  freight  is  payable  for 
the  infants  of  whom  they  are  delivered  during  the  voyage.  And.  again,  where 
freight  is  contracted  for  the  transporting  of  animals,  and  some  die  during 
the  voyage,  the  freight  is  payable  only  for  those  which  arrive  safe.  And. 
again,  'where  goods,  as  in  the  case  of  molasses,  have  wasted  in  bulk  during 
the  voyage,  freight  is  payable  for  the  amount  which  arrives.  These  are  ad- 
mitted cases.  Now,  all  these  cases  can  only,  as  it  seems  to  me,  be  reason- 
ably explained  on  the  principle,  that,  in  such  cases,  the  freight  is  to  be  cal- 
culated and  paid  on  that  amount  only  which  is  put  on  board,  carried  through- 
out the  whole  voyage,  and  delivered  at  the  end  to  the  merchant." 

2  5  The  statement  of  facts  and  a  part  of  the  opinion  have  been  omitted. 


284  THE   OBLIGATION   OF   THE   SHIPPER,  (Part  3 

form  of  action;  but  if  there  were,  it  is  a  familiar  principle  of  law  that 
when  money  is  paid  by  one  party  in  contemplation  of  some  act  to  be 
done  by  the  other,  and  the  thing  stipulated  to  be  done  is  not  done,  the 
money  may  be  recovered  back  in  an  action  for  money  had  and  re- 
ceived. 

Judgment  for  the  plaintiff.^' 


SECTION  3.— LIEN  FOR  FREIGHT 


LAWS  OF  WISBY,  Art.  58:  "Likewise  when  a  master  has  un- 
loaded goods  out  of  his  ship,  he  may  keep  the  goods  alongside  for  the 
freight,  and  for  the  expenses  for  which  they  may  be  liable,  unless  the 
master  will  entrust  them." 


CONSULATE  OF  THE  SEA,  c.  225 :  And  if  by  chance  the  said 
merchants  shall  ask  of  the  managing  owner  of  the  ship  or  vessel,  if 
he  will  accept  for  his  freight  a  portion  of  the  very  same  goods  which 
he  has  brought  in  his  ship,  *  *  *  ^^^^  jf  j-j^  ^yjn  allow  them  to 
discharge  so  much  until  he  has  enough  left  to  pay  the  freight  *  *  * 
he  may  do  so,  but  the  said  merchants  cannot  force  him.    *    *     * 

26  "*  *  *  And  if  the  passenger  goes  away  without  leave  of  absence, 
and  does  not  come  at  the  term  when  the  ship  sails,  if  the  passenger  has  paid 
a  thousand  marks  of  earnest  money,  or  if  he  has  paid  the  whole  freight,  the 
master  is  not  bound  to  return  any  of  it."     Consulate  of  the  Sea,  c.  71. 

"This  vessel  *  *  *  -was  obliged  to  unlade  and  could  not  proceed.  -No 
passage  money  is  due  before  the  passenger  arrives  at  the  port  of  destination, 
unless  compensation  pro  rata  itineris  is  agreed  to  be  paid.  His  expenses,  or 
the  means  of  proceeding  to  the  place  of  destination,  must  be  paid,  or  ten- 
dered, to  a  passenger.  On  refusal  to  proceed,  compensation  pro  rata  is  de- 
mandable."  By  the  court,  in  Rowland  v.  The  Lavinia,  1  Pet.  Adm.  123,  Fed. 
Cas.  No.   6.797  (1801). 

"It  is  settled,  by  the  authorities  referred  to  in  the  course  of  the  argument, 
that  by  the  law  of  England  a  payment  made  in  advance  on  account  of  freight 
cannot  be  recovered  back  in  the  event  of  the  goods  being  lost  and  the  freight 
therefor  not  becoming  payable.  I  regret  that  the  law  is  so.  I  think  it  founded 
on  an  ei'roneous  principle  and  anything  but  satisfactory :  and  I  am  em- 
boldened to  say  this  by  finding  that  the  American  authorities  have  settled  the 
law  upon  directly  opposite  principles,  and  that  the  law  of  every  European 
country  is  in  conformity  with  the  American  doctrine  and  contrary  to  ours." 
Cockburn,  C.  J.,  in  Byrne  v.  Schiller.  L.  R.  0  Ex.  319.  .32.')  (1871). 

"I  apprehend  that  rule  [the  English  rule]  to  be  that  a  prepayment  of  freight 
is  not  recoverable,  and  that  it  depends  upon  this:  That  there  is  an  implied 
understanding  that  it  shall  be  made  once  for  all,  and  shall  not  be  subject  to 
any  contingency.  Foreign  law  requires  that  for  this  purpose  there  shall  be 
an  express  agreement  between  the  parties;  our  law.  on  the  contrary,  sup- 
poses there  is  an  implied  agreement  unless  it  is  expressly  excluded."  Mon- 
tague Smith,  J.,  Id.  327. 

See,  also,  De  Sola  v.  Pomares  (D.  C.)  119  Fed.  373  (1902) ;  Oriental  S.  S. 
Co.  V.  Taylor,  2  Q.  B.  518  (1893). 


-Ch.  1)  FREIGHT.  285 

ANONYMOUS. 

(Court  of  King's  Bench,  1701.     12  Mod.  447.) 

HoLT^  C.  J.     Every  master  of  a  ship  may  detain  goods  till  he  be 
paid  for  them;  that  is,  for  their  freight. 


SKINNER  V.  UPSHAW. 

(Court  of  Queen's  Bench.  1702.    2  Ld.  Raym.  7.j2.) 

The  plaintiff  brought  an  action  of  trover  against  the  defendant, 
being  a  common  carrier,  for  goods  delivered  to  him  to  carry,  etc. 
Upon  not  guilty  pleaded,  the  defendant  gave  in  evidence,  that  he 
offered  to  deliver  the  goods  to  the  plaintiff,  if  he  would  pay  him  his 
hire;  but  that  the  plaintiff  refused,  etc.,  and  therefore  he  retained 
them.  And  it  was  ruled  by  Holt,  Chief  Justice  at  Guildhall  (the 
case  being  tried  before  him  there).  May  12,  1  Ann.  Reg.  1702,  that 
a  carrier  may  retain  the  goods  for  his  hire;  and  upon  direction  the 
•defendant  had  a  verdict  e-iven  for  him. 


BOGGS  V.  MARTIN. 
(Court  of  Appeals  of  Kentucky,  18.j2.     .52  Ky.  239.) 

Simpson,  J.-"  This  action  of  replevin  was  brought  by  ^Martin 
against  Boggs  and  Russell  for  93  barrels  of  pitch  and  rosin. 

The  property  sued  for  was  shipped  at  New  Orleans  on  the  steam- 
boat Cincinnatus,  to  be  delivered  at  the  port  of  Louisville  to  the  plain- 
tiff, he  paying  freight  for  the  same  at  the  rate  of  37  cents  per  barrel. 
*  *  *  Where  there  is  no  special  contract  to  the  contrary,  the  car- 
rier has  a  lien  upon  the  goods  and  a  right  of  detention  until  the  freight 
is  paid,  and  he  may  detain  any  part  of  the  merchandise  contained  in 
the  same  bill  of  lading,  and  consigned  to  the  same  person,  until  the 
freight  upon  the  whole  of  it  be  paid.-"  Abb.  on  Shipp.  247.  But  if 
he  once  parts  with  the  possession  out  of  the  hands  of  himself  and  his 
agents,  he  loses  his  lien  or  hold  upon  the  goods,  and  can  not  afterward 
reclaim  them.     Id.  248. 

The  question  in  this  case  upon  the  evidence  was,  had  the  goods 
passed  out  of  the  hands  of  the  agents  of  the  boat,  and  the  lien  upon 
them  for  the  payment  of  the  freight  been  thereby  lost? 

Upon  this  point  the  court  below  instructed  the  jury:     "If  they  be- 

2  7  Part  of  the  opinion  has  been  omitted. 

2  8  Ace.  Potts  Y.  X.  Y.  &  N.  E.  R.  Co.,  131  Mass.  4.5.5.  41  Am.  Rep.  247  (1881); 
Ta.  Steel  Co.  v,  Ga.  R.  Co.,  94  Ga.  630,  21  S.  E.  577  (1894). 


286  THE  OBLIGATION  OF  THE  siiiprER.  (Part  3 

lieved  from  the  evidence  that  the  rosin  and  pitch  were  put  out  of  the 
steamboat  on  the  wharf  in  Louisville,  and  the  bill  of  lading  was  sent 
to  the  plaintiff,  and  he  took  possession  of  and  hauled  away  one  load 
or  any  part  of  the  rosin  and  pitch  with  the  consent  of  the  defendants, 
these  facts  themselves  constituted,  in  law,  a  delivery  of  possession, 
and  the  lien  for  the  freight  was  thereby  lost." 

This  exposition  of  the  law  we  deem  erroneous,  for  the  following 
reasons : 

The  goods,  although  put  out  of  the  steamboat  on  the  wharf,  were 
still  in  the  possession  of  the  agents  of  the  boat,  as  it  clearly  appeared 
from  the  testimony;  and  the  act  of  unloading  a  boat  and  placing  the 
merchandise  on  the  wharf  does  not  indicate  any  intention  to  part  with 
the  possession  of  it  until  the  freight  is  paid.  Indeed,  the  law  is,  that 
the  officers  cannot  detain  the  goods  on  board  the  boat  until  the  freight 
is  paid,  as  the  merchant  or  consignee  would  then  have  no  opportunity 
of  examining  their  condition.     Abbott,  248. 

It  was  the  duty  of  the  carriers  to  send  the  bill  of  lading  to  the  con- 
signee, to  apprise  him  that  the  goods  had  arrived  and  were  ready  to 
be  delivered,  so  that  he  could  attend  and  examine  their  condition,  pay 
the  freight  due,  and  take  them  into  his  possession.  Sending  the  bill 
of  lading  to  him,  therefore,  amounted  to  nothing  more  than  a  com- 
munication of  the  fact  that  the  goods  had  arrived  and  an  offer  to 
deliver  them  upon  the  payment  of  the  freight.  No  other  inference 
arises  from  the  act,  nor  could  it  justly  create  an  implication  that  the 
delivery  of  the  bill  of  lading  was  intended  to  operate  as  a  waiver  of  the 
lien  for  the  freight,  and  a  delivery  of  the  possession  of  the  goods  to 
the  consignee. 

As  the  master  may  detain  any  part  of  the  merchandise  for  the 
freight  of  all  that  is  consigned  to  the  same  person,  and  as,  if  he  make 
a  delivery  of  part  to  the  consignee,  he  may  retain  the  residue  even 
against  a  purchaser  until  payment  of  the  freight  of  the  whole  ( Soder- 
green  v.  Flight,  6  East,  622),  the  delivery  in  the  present  case  of  the 
seven  barrels  of  the  pitch  and  rosin  did  not  necessarily  constitute  a 
delivery  of  the  whole  to  the  consignee.  A  delivery  of  part  will,  in 
some  cases,  amount  to  the  delivery  of  the  whole,  but  whether  it  is  in 
a  particular  case  to  have  that  effect  or  not  will  depend  upon  the  in- 
tention with  which  the  act  was  done.  The  seven  barrels  were  no 
doubt  allowed  to  be  taken,  under  the  belief  that  the  freight  would  be 
paid  without  objection,  but  the  permission  to  take  the  possession  of 
part  did  not  amount  to  a  waiver  of  the  lien  upon  the  residue  by  legal 
implication  nor  to  a  constructive  delivery  of  that  residue  to  the  con- 
signee, unless  it  was  given  with  that  intention,  which  was  a  matter  of 
fact  for  the  jury  to  determine. 

These  acts,  therefore,  neither  separately  nor  in  conjunction  consti- 
tuted by  legal  deduction  a  delivery  of  the  possession  of  the  whole  of 
the  goods  to  the  plaintiff. 


Ch.  1) 


FREIGHT.  287 


Wherefore,  for  the  error  of  the  court  in  its  instruction  to  the  jury, 
the  judgment  is  reversed,  and  cause  remanded  for  a  new  trial,  and 
further  proceedings  consistent  with  this  opinion.-^ 

2  9  The  right  to  the  possession  of  the  goods  until  freight  is  paid  is  in  general 
lost  by  delivery.  Lembeck  v.  Jarvis  Co..  68  N.  J.  Eq.  402,  59  Atl.  3(30  (1904), 
affirmed  69  N.  J.  Eq.  781,  63  Atl.  257  (1806).  As  to  what  constitutes  such  de- 
livery as  to  end  the  lien,  see  Lane  v.  Old  Colony  R.  Co..  14  Gray  (Mass.)  143 
(1859).  Compare  Bigelow  v.  Heaton,  6  Hill  (N.  Y.)  43  (184.3).  delivery  obtained 
by  fraud ;  Hahl  v.  Laux,  42  Tex.  Civ.  App.  182,  93  S.  W.  lOSO  (1906),  goods 
taken  without  carrier's  consent.  The  lien  may  be  waived,  without  delivery. 
N.  H.  &  N.  Co.  V.  Campbell,  128  Mass.  104,  35  Am.  Rep.  360  (1880).  It  does 
not  exist  where  the  carrier  has  contracted  to  deliver  without  requiring  pay- 
ment, even  though  payment  is  in  default  and  shipper  and  consignee  insolvent. 
The  Bird  of  Paradise,  5  Wall.  545.  18  L.  Ed.  062  (1866).  But  courts  incline 
to  interpret  contracts  as  not  being  promises  to  deliver  without  pajinent.  The 
Volunteer.  1  Suran.  551,  Fed.  Cas.  No.  16.991  (1834).  freight  payable  10  days 
after  arrival ;  The  Kimball,  3  Wall.  37,  18  L.  Ed.  50  (1865),  half  in  5,  half  in 
10.  days  after  discharge ;  The  Bird  of  Paradise,  5  Wall.  545,  561,  18  L.  Fa\.  662 
(1866),  bill  of  exchange  taken  in  conditional  payment;  Atchison,  etc.,  Ry.  Co. 
V.  Hinsdell,  76  Kan.  74,  90  Pac.  800.  12  L.  R.  A.  (N.  S.)  94  (1907),  "this  agree- 
ment contains  all  terms  relating  in  any  manner  to  the  transportation."  There 
is  no  lien  on  one  shipment  for  freight  on  another.  Alias  S.  S.  Co.  v.  Colum- 
bian Land  Co.,  102  Fetl.  358,  42  C.  C.  A.  398  (1900).  Nor,  where  a  ship- 
per has  furnished  part,  but  not  all,  of  a  cargo  contracted  for,  is  there  a  lien  on 
the  goods  shipped,  for  freight,  commonly  called  "dead  freight,"  that  would 
have  been  earned  on  the  part  not  shipped,  though  the  shipper  has  expressly 
contracted  to  pay  dead  freight.  Phillips  v.  Rodie,  15  East,  547  (1812).  The 
lien  entitles  a  carrier  to  possession  as  against  an  attaching  creditor  of  the 
owner.  Wolfe  v.  Crawford,  54  Miss.  514  (1877).  Or  a  vendor  who  stops  in 
transitu.    Potts  v.  N.  T.  &  N.  E.  R.  Co.,  131  Mass.  455.  41  Am.  Rep.  247  (1881). 

A  common  carrier  has  a  lien  for  passage  money  on  baggage  delivered  to  it 
for  carriage.  Roberts  v.  Koehler  (C.  C.)  30  Fed.  94  (1887).  But  has  no  right 
to  wrest  a  parasol  as  securitv  from  a  passenger  who  refuses  to  pay  fare. 
Ramsden  v.  B.  &  A.  R.  Co.,  104  Mass.  117.  6  Am.  Rep.  200  (1870).  But  it  has 
been  held  that  a  railroad  comi)any  may  prevent  a  i>assenger  removing  from 
its  car  a  bag  in  the  passenger's  custody  containing  a  large  sum  of  money  until 
a  price  for  its  carriage  has  been  paid.  Ilutchings  v.  Western  R.  Co..  25  Ga. 
61,  71  Am.  Dec.  156  (185S).  And  that,  where  a  known  rule  requires  surrender 
of  ticket  on  leaving  the  boat,  a  passenger  attempting  to  leave  without  surren- 
dering a  ticket  or  paying  fare  may  be  detained  by  the  steamboat  company  to 
investigate  the  truth  of  his  story  that  his  ticket  is  lost.  Standish  v.  Nar- 
ragansett  S.  S.  Co.,  Ill  Mass.  512,  15  Am.  Rep.  66  (1873). 

A  private  carrier  has  a  right  to  detain  goods  for  freight  for  maritime 
transportation.  The  Eddy,  5  Wall.  481,  18  L.  Ed.  486  (1866).  And  so  by  the 
better  opinion  has  a  private  carrier  by  land.  Jones  on  Liens,  §  276;  Hutch,  on 
Carriers,  §  46.  Contra:  Thompson  v.  N.  Y.  Storage  Co.,  97  Mo.  App.  135. 
70  S.  W.  938  (1902),  senible.  "On  what  principles  rests  the  general  lien  of 
goods  for  freight?  The  master  is  the  agent  of  the  shipowner,  to  receive  and 
transport;  the  goods  are  improvetl  in  value  by  the  cost  and  cares  of  transpoi'ta- 
tion.  As  the  bailee  of  the  shipper,  the  goods  are  in  the  custody  and  possession 
of  the  master  and  shipowner,  and  the  law  will  not  suffer  that  possession  to  be 
violated  until  the  laborer  has  received  his  hire."  Johnson,  J.,  in  Grade  v. 
Palmer.  8  Wheat.  605,  635,  5  L.  Ed.  696  (1823). 

A  maritime  carrier  has  not  only  a  common-law  right  to  detain,  but  a  right, 
in  the  nature  of  an  interest  in  the  goods,  called  a  "maritime  lieu,"  to  proceed 
in  admiralty  by  process  issued  against  the  goods  to  have  them  sold  to  satisfy 
his  claim  for  freight. 

"It  is  a  right  adhering  to  the  thing,  a  jus  in  re,  which  is  to  be  made  avail- 
able by  process  against  the  thing  in  specie."  Ware,  J.,  in  Drinkwater  v.  The 
Spartan,  1  Ware,  145,  Fed.  Cas.  No.  4,085  (1828). 

The  latter  right  is  not  now  considered  to  be  dependent  upon  possession,  al- 
though delivery  without  notice,  within  a  reasonable  time,  of  intent  to  retain 


288  THE   OBLIGATION   OF   THE   SHIPPER,  (Part  3 


ROBINSON  V.  BAKER. 

(Supreme  Judicial  Court  of  Massachusetts,  1S40.     5  Cush.  137,  51  Am. 

Dec.  54.) 

Replevin  for  600  barrels  of  flour  received  from  plaintiff's  agent  at 
Black  Rock  by  the  Old  Clinton  Line,  common  carriers  by  canal  boat, 
who  by  bill  of  lading  tmdertook  to  carry  them  to  East  Albany  and 
there  deliver  to  Witt,  agent  of  the  Western  Railroad.  The  Western 
Railroad,  with  its  connections,  extended  from  East  Albany  to  Boston, 
and  plaintiff  had  a  contract  with  it  for  carrying  his  flour  to  Boston. 
When  the  flour  arrived  at  Albany,  Witt  said  he  could  not  take  it  off 
the  boat  that  day,  nor  until  'she  could  be  unloaded  in  her  turn  with 
other  boats.  Thereupon  the  Old  Clinton  Line  shipped  the  flour  by 
the  Albany  and  Canal  Line  to  New  York,  to  be  forwarded  by  them  to 
Boston,  which  they  did  by  shipping  it  at  New  York  on  a  schooner  of 
which  defendant  was  master,  with  instructions  to  deliver  to  plaintiff 
on  his  paying  or  promising  to  pay  all  freights.  When  the  flour 
reached  Boston,  plaintiff  demanded  it.  Defendant  refused  to  deliver, 
on  the  ground  that  he  had  a  lien  for  freight.  The  case  was  reported 
by  the  trial  judge  for  the  consideration  of  the  whole  court.  If  the  in- 
struction to  the  jury  was  correct,  defendant  to  have  judgment;  if 
defendant  had  no  lien  upon  any  ground  open  upon  the  case  stated, 
plaintiff  to  have  judgment,  with  nominal  damages. 

Fletcher,  J."*^  (after  stating  the  facts,  the  instructions  requested, 
and  the  instructions  given).  As  the  ruling  of  the  judge,  that  the  de- 
fendant, as  a  carrier,  had  a  lien  for  his  freight,  was  placed  upon 
grounds  wholly  independent  of  any  rightful  authority  in  the  agents  of 
the  Old  Clinton  Line  and  the  Albany  and  Canal  Line,  to  divert  the 
goods  from  the  course  in  which  the  plaintiff  had  directed  them  to  be 
sent,  and  to  forward  them  by  the  defendant's  vessel,  and  wholly  inde- 
pendent of  the  plaintiff's  consent,  express  or  implied,  the  simple  ques- 
tion raised  in  the  case  is  whether,  if  a  common  carrier  honestly  and 
fairly  on  his  part,  without  any  knowledge  or  suspicion  of  any  wrong, 
receives  goods  from  a  wrongdoer,  without  the  consent  of  the  owner, 
express  or  implied,  he  may  detain  them  against  the  true  owner,  until 
his  freight  or  hire  for  carriage  is  paid;  or  to  state  the  question  in  other 
words,  whether,  if  goods  are  stolen  and  delivered  to  a  common  car- 
rier, who  receives  them  honestly  and  fairly  in  entire  ignorance  of  the 
theft,  he  can  detain  them  against  the  true  owner  until  the  carriage 
is  paid. 

the  right,  will  ordinarily  be  treated  as  a  relinquishment  of  it,  and  will  also 
prevent  its  enforcement  as  against  interests  subsequently  acquired  by  others. 
151  Tons  of  Coal,  4  Blatchf.  368.  Fed.  Cas.  No.  10,520  (18.59);  Blowers  v. 
Wire  Cable  (D.  C.)  19  Fed.  444  (1884) ;  The  Giulio,  34  Fed.  909  (1888) ;  Well- 
man  V.  Morse,  76  Fed.  573.  22  C.  C.  A.  818  (1896).  Compare  Bags  of  Linseed, 
1  Black,  108,  17  L.  Ed.  35  (1861). 

3  0  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion 
omitted. 


Ch.  1)  FREIGHT.  289 

It  is  certainly  remarkable  that  there  is  so  little  to  be  found  in  the 
books  of  the  law,  upon  a  question  which  would  seem  likely  to  be  con- 
stantly occurring  in  the  ancient  and  extensive  business  of  the  carrier. 
In  the  case  of  York  v.  Grenaugh,  2  Ld.  Raym.  866,  the  decision  was, 
that  if  a  horse  is  put  at  the  stable  of  an  inn  by  a  guest,  the  innkeeper 
has  a  lien  on  the  animal  for  his  keep,  whether  the  animal  is  the  prop- 
erty of  the  guest  or  of  some  third  party  from  whom  it  has  been  fraud- 
ulently taken  or  stolen.  In  that  case,  Lord  Chief  Justice  Holt  cited 
the  case  of  an  Exeter  common  carrier,  where  one  stole  goods  and 
delivered  them  to  the  Exeter  carrier,  to  be  carried  to  Exeter ;  the  right 
owner,  finding  the  goods  in  possession  of  the  carrier,  demanded  them 
of  him ;  upon  which  the  carrier  refused  to  deliver  them  unless  he  was 
first  paid  for  the  carriage.  The  owner  brought  trover,  and  it  was  held 
that  the  carrier  might  justify  detaining  the  goods  against  the  right 
owner  for  the  carriage ;  for  when  they  were  brought  to  him,  he  was 
obliged  to  receive  them  and  carry  them,  and  therefore,  since  the  law 
compelled  him  to  carry  them,  it  will  give  him  a  remedy  for  the  pre- 
mium due  for  the  carriage.  Powell,  J.,  denied  the  authority  of  the 
case  of  the  Exeter  carrier,  but  concurred  in  the  decision  as  to  the  inn- 
keeper. There  is  no  other  report  of  the  case  of  the  Exeter  carrier  to 
be  found.  Upon  the  authority  of  this  statement  of  the  case  of  the  Exe- 
ter carrier,  the  law  is  laid  down  in  some  of  the  elementary  treatises 
to  be,  that  a  carrier,  who  receives  goods  from  a  wrongdoer  or  thief, 
may  detain  them  against  the  true  owner  until  the  carriage  is  paid. 

In  the  case  of  King  v.  Richards,  6  Whart.  (Pa.)  418,  37  Am.  Dec. 
420,  the  court,  in  giving  an  opinion  upon  another  and  entirely  dif- 
ferent and  distinct  point,  incidentally  recognized  the  doctrine  of  the 
case  of  the  Exeter  carrier.  But  until  within  six  or  seven  years 
there  was  no  direct  adjudication  upon  this  question  except  that  refer- 
red to  in  York  v.  Grenaugh  of  the  Exeter  carrier.  In  1843  there  was 
a  direct  adjudication  upon  the  question  now  under  consideration  in 
the  Supreme  Court  of  Michigan,  in  the  case  of  Fitch  v.  Newberry,  1 
Doug.  1,  40  Am.  Dec.  33.  The  circumstances  of  that  case  were  very 
similar  to  those  in  the  present  case.  *  *  *  The  decision  was  against 
the  carrier.  *  *  *  This  decision  is  supported  by  the  case  of  Van 
Buskirk  v.  Purinton,  2  Hall  (N.  Y.)  601.  There  property  was  sold  on 
a  condition,  which  the  buyer  failed  to  comply  with,  and  shipped  the 
goods  on  board  the  defendant's  vessel.  On  the  defendant's  refusal  to 
deliver  the  goods  to  the  owner  he  brought  trover  and  was  allowed  to 
recover  the  value,  although  the  defendants  insisted  on  the  right  of  lien 
for  the  freight. 

Thus  the  case  stands  upon  direct  and  express  authorities.  How 
does  it  stand  upon  general  principles  ?  In  the  case  of  Saltus  v.  Ever- 
ett, 20  Wend.  (N.  Y.)  267,  275,  32  Am.  Dec.  541,  it  is  said:  "The 
universal  and  fundamental  principle  of  our  law  of  personal  property 
is,  that  no  man  can  be  divested  of  his  property  without  his  consent, 
Gkeen  Cake. — 19 


290  THE   OBLIGATION   OF   THE   SHIPPER.  (Part  3 

and  consequently,  that,  even  the  honest  purchaser  under  a  defective 
title  cannot  hold  against  the  true  proprietor."  *  *  *  There  are 
other  hard  and  distressing  cases  of  advances  made  honestly  and  fairly 
by  auctioneers  and  commission  merchants,  upon  a  pledge  of  goods  by 
persons  apparently  having  the  right  to  pledge,  but  who,  in  fact,  had 
not  any  such  right,  and  the  pledgees  have  been  subjected  to  the  loss 
of  them  by  the  claim  of  the  rightful  owner.  These  are  hazards  to 
which  persons  in  business  are  continually  exposed  by  the  operation  of 
this  universal  principle,  that  a  man's  property  cannot  be  taken  from 
him  without  his  consent.  Why  should  the  carrier  be  exempt  from  the 
operation  of  this  universal  principle?  Why  should  not  the  principle 
of  caveat  emptor  apply  to  him?  The  reason,  and  the  only  reason, 
given  is,  that  he  is  obliged  to  receive  goods  to  carry,  and  should  there- 
fore have  a  right  to  detain  the  goods  for  his  pay.  But  he  is  not  bound 
to  receive  goods  from  a  wrongdoer.  He  is  bound  only  to  receive 
goods  from  one  who  may  rightfully  deliver  them  to  him,  and  he  can 
look  to  the  title,  as  well  as  persons  in  other  pursuits  and  situations  in 
life.  Nor  is  a  carrier  bound  to  receive  goods,  unless  the  freight  or 
pay  for  the  carriage  is  first  paid  to  him ;  and  he  may,  in  all  cases,  se- 
cure the  payment  of  the  carriage  in  advance.  In  the  case  of  King  v. 
Richards,  6  Whart.  (Pa.)  418,  37  Am.  Dec.  420,  it  was  decided  that  a 
carrier  may  defend  himself  from  a  claim  for  goods  by  the  person  who 
delivered  them  to  him,  on  the  ground  that  the  bailor  was  not  the  true 
owner,  and  therefore  not  entitled  to  the  goods. 

The  common  carrier  is  responsible  for  the  wrong  delivery  of  goods, 
though  innocently  done,  upon  a  forged  order.  Why  should  not  his 
obligation  to  receive  goods  exempt  him  from  the  necessity  of  deter- 
mining the  right  of  the  person  to  whom  he  delivers  the  goods,  as  well 
as  from  the  necessity  of  determining  the  right  of  the  person  from 
whom  he  receives  goods?  Upon  the  whole,  the  court  are  satisfied  that 
upon  the  adjudged  cases,  as  well  as  on  general  principles,  the  ruling 
in  this  case  cannot  be  sustained,  and  that  if  a  carrier  receives  goods, 
though  innocently,  from  a  wrongdoer,  without  the  consent  of  the 
owner,  express  or^  implied,  he  cannot  detain  them  against  the  true 
owner,  until  the  freight  or  carriage  is  paid.^^ 

31  Ace.  Bassett  v.  Spofford.  4-5  N.  Y.  387,  6  Am.  Rep.  101  (1871).  stolen  poods 
shipped  on  vessel ;  Savannah  Ry.  Co.  v.  Talbot,  123  Ga.  378.  51  S.  E.  401  (1905), 
horse  shipped  by  servant  -without  authority.  And  see  Gilson  v.  Gwinn,  107 
Mass.  126,  9  Am.  Rep.  13  (1871),  leased  sewing  machine  moved  with  other 
furniture;  Corinth  Engine  &  Boiler  Works  v.  Miss.  Cent.  R.  Co.  (Miss.)  49 
South.  261  (1909).  Compare  Crossan  v.  N.  Y.  R.  Co.,  149  Mass.  196,  21  N.  E. 
367,  3  Lv  R.  A.  766,  14  Am.  St.  Rep.  408  (1889),  second  carrier  held  to  have 
lien  for  usual  charge  on  perishable  goods,  though  owner  was  known  to  have 
instructed  first  carrier  to  ship  at  a  lower  rate. 

"To  incumber  an  innkeeper  or  a  carrier  with  the  obligation  of  inquiring  and 
determining  the  relation  in  which  the  guest  or  the  sender  of  the  goods  stands 
in  reference  to  his  possession  of  what  he  brings  would  be  totally  inconsistent 
with  the  relations  in  which  both  the  innkeeper  and  the  carrier  stand  toward 


Ch.  1)  FREIGHT.  291 


BRIGGS  V.  BOSTON  &  L.  R.  CO. 

(Supreme  Judicial  Court  of  :Massaclmsetts,   Suffolk,   1SG3.     6  Allen,  246,  83 

Am.  Dee.  626.) 

Tort  for  the  conversion  of  sixty-seven  barrels  of  flour.  Upon 
agreed  facts,  which  are  stated  in  the  opinion,  judgment  was  rendered 
in  the  superior  court  for  the  plaintifif,  for  the  amount  received  by  the 
defendants  upon  the  sale  of  the  flour  by  them,  deducting  the  sum 
claimed  by  them  as  the  amount  for  which  they  had  a  lien  on  the  flour, 
and  the  expenses  of  the  sale;  and  the  defendants  appealed  to  this 
court. 

Merrick,  J. 3 2  The  plaintiff,  who  resides  at  Racine,  in  the  state  of 
Wisconsin,  delivered  the  flour,  the  value  of  which  he  seeks  to  recover 
in  this  action,  to  the  Racine  &  ^Mississippi  Railroad  Company,  taking 
from  their  agents  a  receipt,  in  which  they  agreed  to  forward  and  de- 
liver it  to  Franklin  E.  Foster,  at  Williamstown,  in  this  state.  By  mis- 
take of  the  agents  of  that  company,  the  flour  was  erroneously  directed 
or  billed  to  Wilmington,  where  there  is  a  freight  station  on  the  road  of 
the  defendants.  It  was  carried  by  the  Racine  &  Mississippi  Company 
over  their  road,  and  at  its  eastern  termination  delivered  to  the  carriers 
next  in  succession  in  the  line  and  route  from  Racine  to  Wilmington. 
And  it  was  thus  transported  by  the  successive  carriers  in  that  line  and 
route  in  their  vessels  and  cars  respectively,  according  to  the  bills  and 
directions  under  which  it  was  forwarded  from  Racine,  until  it  arrived 
in  due  time  at  Groton,  the  point  of  the  commencement  of  the  road  of 
the  defendants.  And  it  was  there  received  by  them,  they  paying  the 
freight  earned  by  all  the  preceding  carriers,  and  carried  to  Wilming- 
ton, where  it  was  duly  deposited  in  their  freight  depot.  But  Frank- 
lin E.  Foster,  to  whom  it  was  directed,  did  not  reside  or  have  any  place 
of  business  at  Wilmington,  and  the  defendants  were  unable  to  find 
there  any  consignee  who  could  be  notified  of  its  arrival,  or  to  whom 
it  could  be  delivered.  The  defendants'  agents  immediately  instituted 
a  diligent  inquiry,  but  they  could  not  ascertain  where  the  consignee 
or  any  other  person  entitled  to  have  possession  of  the  flour  was  to  be 
found,  or  could  be  notified.     At  the  time  of  its  arrival  at  Wilmington 

the  public,  for  whose  benefit  they  profess  to  act,  and  do  act,  in  their  respective 
calliufrs."    Per  Pigot,  C.  B.,  in  Waugh  v.  Denham,  16  Irish  C.  L.  405,  410  (1865). 

"Indeed,  the  learned  author  whom  I  have  so  often  cited  says  that  the  mas- 
ter contracts  i-ather  with  the  merchandise  than  with  the  shipper ;  and  he  has 
his  privilege  for  the  freight,  even  against  the  true  owner  of  the  goods,  though 
they  had  been  stolen  (Pardessus,  Droit  Com.  art.  961) ;  and  Valin  (Comm.  blv. 
3,  tit.  1,  art.  11,  24)  says  that  the  contrary  opinion  is  absurd."  Per  Lowell, 
J.,  in  The  Hyperion's  Cargo,  2  Lowell,  93,  Fed.  Cas.  No.  6,987  (1S71). 

To  the  effect  that  an  innlieeper  has  a  lien  on  stolen  goods,  see  Abbot,  C.  J., 
in  Johnson  v.  Hill,  3  Stark.  172  (1822) ;  Black  v.  Brennan,  5  Dana,  (Ky.)  310 
(1837) ;  Cook  v.  Kane,  13  Or.  482,  11  Pac.  226,  57  Am.  Kep.  28  (1886) ;  Beale  on 
Innkeepers  and  Hotels,  §  261. 

3  2  Parts  of  the  opinion  are  omitted. 


292  THE   OBLIGATION   OF   THE   SHIPPER.  (Part  3 

it  was  beginning  to  become  sour,  and  would  soon  have  greatly  de- 
teriorated in  value.  The  defendants  kept  it  on  hand  in  store  for  about 
two  months ;  and  at  the  expiration  of  that  time,  being  still  unable  to 
find  either  the  owner  or  the  consignee,  and  it  being  out  of  their  power 
to  procure  a  warehouse  in  which  they  could  store  it  for  a  longer  time, 
they  caused  it  to  be  sold  at  public  auction,  and  received  the  proceeds 
of  the  sale,  which  they  have  since  retained  in  their  possession. 

Upon  these  facts,  the  plaintiff  in  the  first  place  contends  that  as 
Williamstown  was  the  place  of  destination  of  the  flour  under  the  di- 
rections which  he  gave  to  the  Racine  &  IMississippi  Railroad  Com- 
pany, and  according  to  their  agreement  in  the  receipt  given  for  it  by 
them  to  him  the  defendants  had  no  right  to  receive  the  flour  at  Groton, 
and  were  guilty  of  the  unlawful  conversion  of  it  to  their  own  use  by 
transporting  it  thence  to  Wilmington ;  although  in  such  reception  and 
transportation  of  it  over  their  road  they  acted  in  good  faith,  and 
strictly  in  conformity  to  the  bills  and  directions  which  were  made  and 
given  by  the  agents  of  the  Racine  &  Alississippi  Company,  and  by 
which  it  was  regularly  accompanied  over  each  and  all  the  lines  and 
routes  of  the  successive  carriers. 

The  same  person  may  be,  and  often  is,  not  only  a  common  carrier, 
but  also  the  forwarding  agent  of  the  owner  of  the  goods  to  be  trans- 
ported. Story  on  Bailm.  §§  502,  537.  He  must  necessarily  act  in 
the  latter  capacity  whenever  he  receives  goods  which  are  to  be  for- 
warded not  only  on  his  own  line,  but  to  some  distant  point  beyond 
it  on  the  line  of  the  next  carrier,  or  on  that  of  the  last  of  several  suc- 
cessive carriers  on  the  regular  and  usual  route  and  course  of  trans- 
portation, to  which  they  are  to  be  carried  and  there  delivered  to  the 
consignee.  The  owner  generally  does  not  and  cannot  always  accom- 
pany them  and  give  his  personal  directions  to  each  one  of  the  succes- 
sive carriers.  He  therefore  necessarily,  in  his  own  absence,  devolves 
upon  the  carrier  to  whom  he  delivers  the  goods  the  duty,  and  invests 
him  with  authority  to  give  the  requisite  and  proper  directions  to  each 
successive  carrier  to  whom,  in  due  course  of  transportation,  they  shall 
be  passed  over  for  the  purpose  of  being  forwarded  to  the  place  of 
their  ultimate  destination.  Otherwise  they  would  never  reach  that 
place.  For  the  first  carrier  can  only  transport  the  goods  over  his  own 
portion  of  the  line ;  and  if  he  is  not  authorized  to  give  the  carrier  with 
whose  route  his  own  connects  directions  in  reference  to  their  further 
transportation,  they  must  stop  at  that  point ;  for  although,  in  gen- 
eral, every  carrier  is  bound  to  accept  and  forward  all  goods  which  are 
brought  and  tendered  to  him,  yet  he  is  not  so  bound  unless  he  is  duly 
and  seasonably  informed  and  advised  of  the  place  to  which  they  are 
to  be  transported.  Story  on  Bailm.  §  532 ;  Judson  v.  Western  Rail- 
road, 4  Allen,  520,  81  Am.  Dec.  718. 

Hence  it  results  b}^  inevitable  implication  that  when  an  owner  of 
goods  delivers  them  to  a  carrier  to  be  transported  over  his  route,  and 
thence  over  the  route  of  a  succeeding  carrier,  or  the  routes  of  several 


Ch.  1)  FREIGHT.  293 

successive  carriers,  he  makes  and  constitutes  the  persons  to  whom  he 
delivers  them  his  forwarding  agents,  for  whose  acts  in  the  execution 
of  that  agency  he  is  himself  responsible.^^  And  therefore  if  the  sev- 
eral successive  carriers  carry  the  goods  according  to  the  directions 
which  are  given  by  the  forwarding  agents,  they  act  under  the  author- 
ity of  the  owner,  and  cannot  in  any  sense  be  considered  as  wrongdoers, 
although  they  are  carried  to  a  place  to  which  he  did  not  intend  that 
they  should  be  sent.  And  in  such  case  the  last  carrier  will  be  en- 
titled to  a  lien  upon  the  goods,  not  only  for  the  freight  earned  by 
him  on  his  own  part  of  the  route,  but  also  for  all  the  freight  which 
has  been  accumulating  from  the  commencement  of  the  carriage  until 
he  receives  them,  which,  according  to  a  very  convenient  custom,  which 
is  now  fully  recognized  and  established  as  a  proper  and  legal  proceed- 
ing, he  has  paid  to  the  preceding  carriers.  Stevens  v.  Boston  &  Wor- 
cester Railroad,  8  Gray,  266. 

Applying  these  rules  and  principles  to  the  facts  developed  in  the 
present  case,  the  conclusion  is  plain  and  inevitable.  It  is  conceded  by 
the  plaintiff,  and  agreed  by  the  parties,  that  the  flour  was  carried  by 
the  Racine  &  Mississippi  Railroad  Company  over  their  road,  and  was 
then  delivered  to  the  carrier  with  whose  route  their  own  connected, 
and  was  thence  transported  in  strict  compliance  with  and  exactly  ac- 
cording to  the  directions  given  by  them  and  contained  in  the  bills 
which  they  forwarded  with  and  caused  to  accompany  the  flour  over 
the  whole  route  from  Racine  to  Wilmington,  by  the  several  successive 
carriers,  and  among  others  by  the  defendants.  The  Racine  &  Mis- 
sissippi Company  were  the  duly  constituted  forwarding  agents  of  the 
plaintiff;  and  as  the  defendants  acted  under  their  authority,  they 
rightfully  received  the  flour  at  Groton  and  carried  it  to  Wilmington. 
And  having  under  that  authority  paid  all  the  freight  which  had  ac- 
cumulated in  the  whole  course  of  the  conveyance,  including  that  which 


3  3  Ace.  Glover  v.  Cape  Girardeau  R.  Co.,  05  Mo.  App.  360,  G9  S.  W.  590 
(1902).  goods  forwarded  by  roundabout  route;  Goodin  v.  So.  Ry.  Co.,  125  Ga. 
630  54  S  E  720,  6  L.  R.  A.  (N.  S.)  1054  (1906).  rate  in  excess  of  first  carrier's 
guarantee;  Thomas  v.  F.  &  C.  Ry.  Co..  116  Ky.  879,  76  S.  W.  1093  (1903).  rate 
in  excess  of  first  carrier's  contract;  Wells  v.  Tliomas,  27  Mo.  17,  72  Am.  Dec. 
228  (1858),  initial  carrier  contracted  to  deliver  at  destination,  final  carrier 
without  notice  held  to  have  lien  for  his  usual  freight  and  for  back  freight 
paid  to  intermediate  carrier,  though  in  excess  of  contract  rate. 

»  *  *  *  -^'g  have  seen  that  the  Union  Pacific  and  the  Denver  &  Rio 
Grande  Companies  had  entered  into  an  agreement  to  disregard  all  directions 
requiring  goods  to  go  over  other  lines,  and  that,  in  pursuance  thereof,  all 
routing  directions  to  the  contrary  were  being  ignored  by  both  companies. 
*  *  *  Under  these  circumstances  we  are  of  the  opinion  that  the  court  be- 
low was  warranted  in  finding  that  the  possession  of  the  property  was  not  ob- 
tained in  good  faith  by  the  defendant  in  the  ordinary  or  usual  course  of  busi- 
ness between  connecting  carriers,  but  that  such  possession  was  wrongful  and 
illegal,  and  that  the  defendant  was  consequently  not  entitled  to  a  carrier's 
lien  upon  the  same,  either  for  its  own  charges  or  those  advanced  to  the  for- 
mer carrier,  and  therefore  there  was  no  error  in  entering  judgment  for  plain- 
tiff." Hayt,  J.,  in  Denver,  etc.,  Co.  v.  Hill,  13  Colo.  35,  21  Pac.  014,  4  L.  R,  A. 
376  (1889). 


294  THE   OBLIGATION   OF   THE   SHIPPER.  (Part  3 

had  been  charged  by  the  forwarding  agent,  up  to  the  time  when  they 
received  the  flour,  they  were,  as  soon  as  it  was  conveyed  to  and  de- 
posited in  their  own  freight  house,  entitled  to  a  Hen  thereon  for  the 
entire  freight  thus  paid  and  earned.  And  they  cannot,  either  by  the 
transportation  of  it  under  such  circumstances  over  their  own  road, 
or  by  the  detention  thereof  for  the  purpose  of  enforcing  their  lien 
upon  it,  be  held  to  have  unlawfully  converted  it  to  their  own  use. 

This  conclusion  does  not  at  all  conflict  with  the  decision  in  the  case 
of  Robinson  v.  Baker,  5  Cush.  137.  51  Am.  Dec.  54  [ante,  p.  288],  upon 
which  the  plaintiflF.  in  support  of  his  position,  chiefly  relie-s.  For  there 
is  an  essential  difference  between  the  facts  in  the  present  and  those 
which  appeared  in  that  case.  *  *  *  The  service  which  the  Old  Clin- 
ton Line  Company  was  to  render  was  exclusively  in  their  capacity  as 
common  carriers.  They  had  only  to  carry  the  flour  to  Albany  and  there 
deliver  it  to  Witt.  They  had  no  other  duty  to  perform ;  no  right  to  ex- 
ercise any  control  over  it  for  any  other  purpose.  They  were  not, 
therefore,  the  forwarding  agents  of  the  plaintiff,  nor  invested  by  him 
with  any  authority  to  give  directions  as  to  further  transportation  of 
the  flour,  or  to  make  any  other  disposition  of  it  than  its  delivery  to 
Witt.  *  *  *  But  if  they  had  been  the  forwarding  agents  of  the 
owner  he  would  have  been  responsible  for  their  acts,  and  his  consent 
to  the  diversion  of  the  property  from  its  intended  route  of  transpor- 
tation would  have  resulted  by  implication  from  their  directions,  and 
the  respective  carriers  would  then  have  become  entitled  to  hold  it 
under  a  lien  to  secure  payment  of  the  freight. 

When  the  flour  had  been  carried  over  their  road  to  Wilmington 
and  deposited  at  that  place  in  their  warehouse,  the  defendants  had, 
as  has  been  shown  above,  a  lien  upon  it  for  all  the  freight  which 
had  been  earned  in  its  transportation  from  Racine.  But  this  gave 
them  only  a  right  to  detain  it  until  they  were  paid ;  not  to  sell  it  to 
obtain  the  remuneration  to  which  they  were  entitled.  In  the  case  of 
Lickbarrow  v.  Mason,  6  East,  21,  it  is  said  by  the  court  that  an  owner 
may  sell  or  dispose  of  his  property  as  he  pleases ;  but  he  who  has  a  lien 
only  on  goods  has  no  right  to  do  so ;  he  can  only  detain  them  until 
payment  of  the  sum  for  which  they  are  chargeable.  And  the  rule 
which  is  now  well  established,  that  a  party  having  a  lien  only,  with- 
out a  power  of  sale  superadded  by  special  agreement,  cannot  lawfully 
sell  the  chattel  for  his  reimbursement,  is  as  applicable  to  carriers  as 
it  is  to  all  other  persons  having  the  like  claim  upon  property  in  their 
possession.  Jones  v.  Pearle,  1  Stra.  557 ;  2  Kent,  Com.  (Gth  Ed.)  6-i2 : 
Doane  v.  Russell,  3  Gray,  382.  It  is  in  distinct  recognition  of  this 
principle  that  the  Legislature  have  provided  that  when  the  owner  or 
consignee  of  fresh  meat,  and  of  certain  other  enumerated  articles  lia- 
ble soon  to  perish  for  want  of  care,  shall  not  pay  for  the  transpor- 
tation and  take  them  away,  common  carriers  who  have  a  lien  thereon 
for  the  freight  may  sell  the  same  without  any  delay,  and  hold  the  pro- 
ceeds, subject  to  their  own  lawful  charges,  for  the  use  of  the  owner. 


Ch.  1)  FREIGHT.  295 

And  such  also  is  the  provision  in  relation  to  trunks,  parcels,  and  pas- 
sengers' effects  left  unclaimed  at  any  passenger  station  of  a  railroad 
company  for  a  period  of  six  months  after  arrival  and  deposit  therein. 
Gen.  St.  c.  80,  §■§  1,  2,  5.  This  enumeration  of  particular  cases,  in 
which  the  right  to  sell  and  dispose  of  certain  goods  and  chattels  trans- 
ported is  conferred  upon  common  carriers,  operates,  according  to  a 
familiar  rule  of  law,  as  a  denial  or  exclusion  of  their  right  in  all  other 
instances. 

None  of  the  provisions  of  the  statute  referred  to  extends  to  the  case 
of  flour  transported  in  barrels  as  an  article  of  merchandise.  And 
therefore  the  defendants  had  no  authority  under  the  statute  and  no 
right  at  law  to  sell  the  flour  which  belonged  to  the  plaintif?,  although 
they  had  a  valid  and  subsisting  lien  upon  it,  and  were  unable  to  find, 
after  diligent  inquiry,  where  the  person  to  whom  it  ought  to  be  de- 
livered resided  or  had  his  place  of  business,  and  there  was  danger  of 
its  becoming  worthless  by  longer  detention  of  it  in  their  warehouse. 
And  consequently  the  sale  which  they  made  was  an  unlawful  conver- 
sion of  it  to  their  own  use  which  renders  them  liable  in  an  action  of 
tort  to  the  owner,  for  its  value,  or  rather  for  the  value  of  all  the  right 
and  interest  which  he  at  that  time  had  in  it,  which  is  the  merchantable 
value  less  the  amount  of  the  lien  upon  it.  The  plaintifif,  therefore, 
may  maintain  this  action,  and  is  entitled  to  recover  as  damages  the 
balance  left  after  deducting  from  the  sum  which  was  the  fair  mer- 
chantable value  of  the  flour  at  the  time  of  the  conversion  the  amount 
for  which,  upon  the  principles  before  stated,  they  had  a  lien  upon  it, 
with  interest  from  the  time  of  demand,  or  the  date  of  the  writ.  And 
as  the  sale  was  unlawful,  the  expenses  incurred  in  making  it  cannot 
be  proved  for  the  purpose  of  diminishing  the  damages  which  the 
plaintiff  ought  to  recover.^* 

Judgment  is  therefore  to  be  rendered  for  him.  Unless  the  parties 
agree  upon  the  amount,  the  cause  must  be  sent  to  an  assessor,  or  sub- 
mitted to  a  jury  if  either  party  requires  it,  to  assess  the  damages. 

84  Compare  Butler  v.  Murray,  ante,  p.  129. 


296  THE  OBLIGATION   OF  THE  SHIPPER.  (Part  3 

CHAPTER  II 
CHARACTER  OF  GOODS 


PIERCE  V.  WIXSOR. 
(District  Court.  D.  Massachusetts,  1861.    2  Spr.  35,  Fed.  Cas.  No.  11.1.51.) 

The  defendants  chartered  of  the  libelant  the  ship  Golden  City  for 
a  voyage  to  San  Francisco,  and  then  put  her  up  as  a  general  ship. 
A  quantity  of  mastic  was  shipped  on  freight  by  the  United  States  gov- 
ernment from  their  works  at  New  York  to  the  fort  at  Fort  Point,  San 
Francisco.  The  mastic  was  in  cakes,  and  was  stowed  in  bulk  in  the 
run.  Upon  the  arrival  of  the  ship  out,  it  w^as  found  that  the  mastic 
had  run  together  and  among  the  cargo,  and  had  then  hardened  in  one 
solid  mass,  adhering  to  the  sides  of  the  ship  and  to  the  cargo  next 
to  it.  The  damage  done  to  the  rest  of  the  cargo,  which  was  paid  by 
the  master  on  account  of  the  ship,  and  the  extra  expense  in  breaking 
the  mastic  out  with  drills  and  chisels,  amounted  to  from  Si. TOO  to 
$2,000.  Two  other  ships,  the  Dashaway  and  Fleet  ^\'ing,  which  sailed 
shortly  after  the  Golden  City,  also  had  some  mastic  shipped  in  the 
same  way,  w^hich  arrived  out  in  the  same  condition.  These  cargoes, 
with  one  other  shipped  in  casks — after  the  news  of  the  condition  in 
which  the  earlier  cargoes  had  arrived  out  had  reached  here — were  all 
the  cargoes  ever  shipped  by  the  United  States,  or,  so  far  as  known 
by  anybody,  to  San  Francisco,  or  on  any  long  voyage. 

The  article  is  manufactured  by  the  United  States  government  at 
Xew  York,  and  is  used  on  fortifications,  and  had  been  repeatedly 
shipped  to  the  various  forts  on  the  Atlantic  coast,  and  in  the  Gulf, 
and  had  always  been  shipped  in  bulk,  without  giving  any  indications 
that  the  heat  in  the  hold  of  a  vessel  would,  under  any  circumstances, 
affect  it.  This  suit  was  brought  by  the  owner  of  the  ship  against  the 
charterers,  to  recover  the  damages  sustained  by  him  in  payment  to 
other  shippers  for  injury  to  their  goods  and  for  the  extra  expense  in 
discharging.  It  was  not  pretended  that  the  defendants  had  any  knowl- 
edge of  the  dangerous  character  of  this  article;  and  so  far  as  any 
thing  was  known  of  the  article,  it  was  thought  perfectly  safe  to  ship 
it  in  this  way.  The  libelant  claimed  to  recover,  upon  the  ground  that 
there  is  always  an  implied  contract,  on  the  part  of  the  charterer  or 
general  shipper  of  goods,  that  the  goods  shipped  shall  not  be  of  a 
character  dangerous  to  the  ship  and  the  residue  of  the  cargo ;  and  that 
the  want  of  knowledge  of  the  true  character  of  the  goods  will  not  re- 
lease such  charterer  or  shipper  of  the  goods  from  this  responsibility. 

SpR-^GUE,  District  Judge.     In  Brass  v.  ]\laitland,  6  El.  &  Bl.  470, 


Ch.  2)  CHARACTER   OF   GOODS.  297 

the  Chief  Justice  evidently  took  the  view  that  the  shipper  of  goods  in 
a  general  ship  impliedly  contracts  that  the  goods  shipped  shall  not  be 
injurious  to  other  goods  shipped  in  the  usual  course  of  lading  a  ship, 
and  that  this  rule  is  not  affected  by  the  fact  that  the  shipper  had  in- 
nocently shipped  dangerous  goods  without  knowledge  of  their  true 
character.  This  principle  is  a  sound  one.  It  throws  the  loss  upon  the 
party  who  generally  has  the  best  means  of  informing  himself  as  to  the 
character  of  the  article  shipped.  A  different  rule  might  encourage 
negligence  on  the  part  of  the  shipper,  and  even  induce  him  to  try  ex- 
periments with  articles  unknown  to  commerce,  if  he  could  set  up  his 
ignorance  of  the  real  character  of  the  articles  as  a  defence  to  any 
damage  caused  by  the  shipment.  This  case  is  not  between  the  ship- 
per and  the  shipowner;  but  the  rule  applies  equally  well  to  the  case 
of  a  charterer.  He  hires  the  whole  ship,  and  has  a  right  to  put  on 
board  a  full  cargo,  and  he  must  not  put  on  board  goods  which  will 
injure  the  ship,  and  cause  her  owners  to  become  responsible  to  other 
shippers  for  damage  done. 

Decree  for  libelant  for  money  paid  by  him  for  other  goods  dam- 
aged, and  for  extra  expense  incurred  in  getting  out  the  mastic.^ 

1  Affirmed  in  the  Circuit  Court.  2  Cliflf.  18,  Fed.  Cas.  No.  11,150. 

In  Acatos  v.  Burns.  L.  R.  3  Ex.  282  (1878),  shipowners  unsuccessfully 
claimed  damages  cause<l  by  the  heating  of  maize  imfit  for  shipment  by  latent 
defect.  Bramwell,  L.  J.,  said:  "We  might  admit  that  Brass  v.  Maitland  was 
correctly  decided,  and  yet  say  that  it  does  not  govern  this  case.  For  the  qual- 
ity of  the  maize  tendered  for  shipment  was  as  much  known  to  the  one  side 
as  the  other."  Brett.  L.  J.,  said:  "Neither  Brass  v.  Maitland,  nor  any  other 
case,  shows  that  there  is  a  warranty  by  the  shipper  that  the  goods  shipped 
have  no  concealed  defects  at  the  time  of  shipment." 


298  THE   OBLIGATION   OF   THE   SHIPPER.  (Part  3 

CHAPTER  III 
DISPATCH  AND  DEMURRAGE 


JAMESON  V.  SWEENEY. 

(City  Court  of  New  York,  General  Term.  1899.     29  Misc.  Rep.  584,  61  N.  Y. 

Supp.  498.) 

FiTzsiMONS,  C.  J.  Though  the  bill  of  lading-  omits  a  demurrage 
clause,  compensation  in  the  nature  of  demurrage  may  nevertheless 
be  recovered  by  the  way  of  damages  for  any  unreasonable  detention 
of  the  vessel.  Van  Etten  v.  Newton  (Com.  PI.)  G  N.  Y.  Supp.  531, 
7  N.  Y.  Supp.  663,  and  8  N.  Y.  Supp.  478,  affirmed  in  134  N.  Y.  143, 
31  N.  E.  334,  30  Am.  St.  Rep.  630.  The  vessel  in  this  instance  was 
unreasonably  delayed,  and  a  liability  followed. 

The  question  is  whether  such  liability  rested  exclusively  on  the  con- 
signee, as  stated  by  the  trial  judge,  or  whether  the  owner  has  an  op- 
tion to  sue  either  consignor  or  consignee,  as  claimed  by  the  appellant. 
The  trial  judge  dismissed  the  complaint  on  the  ground  that,  according 
to  certain  evidence  in  the  case,  the  discharging  of  the  cargo  was  to 
be  done  by  the  consignee,  and  that  consequently  he,  and  not  the 
freighter  or  consignor,  was  liable  for  the  delay.  Assuming  this  to  be 
a  correct  statement  of  the  law  applicable  to  such  a  state  of  facts,  the 
difficulty  is  that  there  was  a  conflict  in  the  evidence  on  that  subject; 
the  plaintiff  having  testified  that  the  agreement  was  that  the  defend- 
ants "were  to  load  the  stone  and  discharge  it."  If  that  question  was 
at  all  material  to  the  issue  as  to  liability,  it  ought  to  have  gone  to  the 
jury,  that  they  might  determine  the  dispute  concerning  it,  and  it  was 
error  to  withhold  the  case  from  them. 

Apart  from  this,  it  was  held  in  Shaver  v.  Gillespie,  19  N.  Y.  Supp. 
237,  by  the  late  court  of  common  pleas  at  general  term,  that  it  is  set- 
tled law  that,  though  the  bill  of  lading  be  silent  as  to  lay  days  and 
demurrage,  still  the  freighter  is  liable  to  the  master  of  the  vessel  for 
damages  for  unreasonable  delay  in  discharging  the  cargo  after  ar- 
rival. Failure  to  provide  a  safe  berth,  and  a  proper  dock  and  cus- 
tomary facilities  for  unloading,  is  such  negligence  as  imposes  a  re- 
sponsibility for  damages  on  the  freighter.  Under  the  rule  laid  down 
in  this  and  kindred  cases,  it  would  seem  that  the  freighter  is  liable  for 
the  demurrage  caused  by  the  delay  in  unloading,  and  that  the  question 
whether  the  consignor  or  consignee  is  to  unload  is  a  matter  between 
them,  which  does  not  affect  the  rights  of  the  owner  or  master  of  the 
vessel  detained.  We  think  the  consignor  became  liable  for  the  demur- 
rage on  the  failure  of  the  consignee  to  pay.    The  master  did  not  agree 


Ch.  3)  DISPATCH    AND    DEMURRAGE.  299 

to  do  the  unloading,  nor  find  a  suitable  place  therefor,  and  seems  to 
have  been  guilty  of  no  neglect  concerning  the  same. 

It  follows  that  the  judgment  must  be  reversed,  and  a  new  trial  or- 
dered, with  costs  to  the  appellant  to  abide  the  event.    All  concur.^ 

1  Ace.  Erichsen  v.  Barkworth,  3  H.  &  N.  894  (1S5G)  ;   Fowler  v.  Knoop,  4  Q. 

B.  D.  299  (1S7S). 

"We  think  that  delivering  cargo  is  as  much  the  duty  of  the  shipowner  as  of 
the  merchant,  and  consequently  that  the  contract,  implied  by  the  law  in  the 
absence  of  any  stipulation  In  a  charter  party,  is  that  each  party  shall  use 
reasonable  diligence  in  performing  his  part  of  the  delivery  at  the  port  of  dis- 
charge ;  the  merchant  being  ready  to  receive  in  the  usual  manner,  and  the 
owner  by  his  captain  and  crew  to  deliver  in  the  usual  manner.  So  that  there 
is  no  contract  implied  by  law  on  the  part  of  the  shipowner  to  allow  his  ves- 
sel to  be  kept  there  for  the  usual  time,  if  by  reasonable  diligence  on  the  part 
of  the  merchant  his  cargo  might  be  sooner  taken  away ;  and  no  contract  im- 
plied by  law  on  the  part  of  the  merchant  to  take  the  cargo  out  within  such 
usual  time,  if  he  could  not  by  reasonable  diligence  perform  it,  though  very 
commonlv  there  are  stipulations  to  that  effect."  Blackburn,  J.,  in  Ford  v. 
Cotesworth,  L.  R.  4  Q.  B.  127,  133  (1868).     Ace.  Hick  v.  Raymond,  [1893]  A. 

C.  22;  Empire  Trans.  Co.  v.  Phil.  R.  Co.,  77  Fed.  919,  23  C.  C.  A.  5t34,  35  L.  R. 
A.  623  (1896),  discharge  delayed  beyond  the  usual  time  by  strike  of  charterer's 
employes. 

"Where  the  time  for  the  discharge  of  the  vessel  is  stipulated,  or  is  definitely 
fixed  by  the  charter  or  bill  of  lading,  so  that  it  can  be  calculated  beforehand, 
the  charterer  thereby  agrees  absolutely  to  discharge  her  within  that  time,  and 
he  takes  the  risk  of  all  unforeseen  circumstances.  'He  bears  the  risk  of  de- 
lay arising  from  the  crowded  state  of  the  place  at  which  the  ship  is  to  load 
or  discharge  (Randall  v.  Lynch.  2  Camp.  352),  or  from  frost  (Barret  v.  But- 
ton, 4  Camp.  333),  or  bad  weather  (Thiis  v.  Byers,  1  Q.  B.  D.  244),  preventing 
access  to  the  vessel,  or  from  acts  of  the  government  of  the  place  prohibiting 
export,  or  preventing  communication  with  the  ship  (Barker  v.  Hodgson,  3 
M.  &  S.  267;  Bright  v.  Page,  3  B.  &  P.  29.5,  note).  And  it  is  immaterial  that 
the  shipowner  also  is  prevented  from  doing  his  part  of  the  work  within  the 
agreed  time,  unless  he  is  in  fault.'  Carver,  Carriage  by  Sea,  §§  610,  611."  Per 
Sanborn,  J.,  in  Empire  Transportation  Co.  v.  Phil.  &  R.  Co..  supra. 

Charter  parties  often  provide  that  the  charterer's  liability  shall  cease  when 
the  vessel  is  loaded,  the  shipowner  to  have  a  lien  on  the  c-irgo  for  freight 
and  demurrage.  For  the  construction  of  the  cesser  clause  as  to  a  liability 
incurred  before  loading  is  finished,  see  Kish  v.  Cory,  L.  R.  10  Q.  B.  553  (1875). 
As  to  a  liabilitv  to  which  the  lien  does  not  extend,  see  Crossman  v.  Burrill, 
179  U.  S.  100,  21  Sup.  Ct.  38.  45  L.  Ed.  106  (1900). 

Laws  of  Oleron,  art.  22:  "A  master  freights  a  ship  to  a  merchant,  and  it  is 
devised  betu-een  them,  and  a  term  is  fixed  for  lading,  and  the  merchant  does 
not  observe  it,  and  also  detains  the  ship  and  the  mariners  for  the  space  of 
fifteen  days  or  more,  and  sometimes  the  master  loses  his  freight  and  his  fine 
weather  by  default  of  the  merchant ;  the  merchant  is  bound  to  make  compen- 
sation to  the  master,  and  of  the  compensation  that  is  made  the  mariners 
shall  have  a  fotirth,  and  the  master  three  parts,  for  the  reason  that  he  finds 
their  expenses." 

Consulate  of  the  Sea,  c.  190:  "If  merchants  freight  a  ship  nnd  promise  to  the 
managing  owner  of  the  ship  or  vessel  that  they  will  despatch  her  by  a  certain 
day,  and  the  contract  has  been  made  in  writing  or  before  witnesses,  or  has 
been  written  In  the  register  book  of  the  ship  or  vessel,  and  the  managing  owner 
of  the  ship  and  the  merchants  have  shaken  hands,  and  a  penalty  has  been 
fixed,  if  the  said  merchants  have  not  despatched  the  ship  or  vessel  by  that 
time,  if  the  master  of  the  ship  wishes  it,  he  may  demand  from  them  that  pen- 
alty which  shall  have  been  fixed  by  agreement  between  them.  And  if  no 
penalty  has  been  fixed  between  the  managing  owner  of  the  ship  and  the  mer- 
chants, the  managing  owner  of  the  ship  may  demand  from  the  merchants  all 
the  expenses  which  he  has  incurred  from  their  fault,  saving  always  if  an 
impediment  of  God  or  of  the  sea  has  prevented  them,  and  he  has  remained 


300  THE   OBLIGATION   OF  THE   SHIPPER.  (Part    ^ 

JESSON  V.  SOLLY. 

(Court  of  Commou  Pleas,  1811.     4  Taunt.  52.) 

This  was  an  action  brought  by  the  master  of  a  vessel  upon  a  gen- 
eral count  in  assumpsit  for  demurrage.  Upon  the  trial,  before  ^lans- 
field,  C.  J.,  at  the  sittings  after  Hilary  term,  1811.  it  appeared  that 
the  plaintifif,  who  was  master  of  a  vessel,  had  taken  on  board  a  cargo, 
and  signed  bills  of  lading,  deliverable  to  the  order  of  the  shipper,  up- 
on payment  of  freight,  and  at  the  bottom  was  a  memorandum  that  the 
ship  was  to  be  delivered  in  16  lay  days,  £8  per  day  demurrage  to  be 
paid  for  every  laying  day  after  the  expiration  of  that  time.    *    *     * 

When  the  vessel  arrived,  no  bill  of  lading  had  arrived  in  this  coun- 
try; the  defendant,  who  expected  the  cargo  to  be  consigned  to  him, 
demanded  the  goods,  which  the  plaintifif,  having  been  apprised  by  an- 
other person  that  he  also  claimed  the  consignment,  refused  to  deliver, 
unless  either  upon  sight  of  the  bill  of  lading,  when  it  should  arrive,, 
indorsed  to  the  defendant,  or  on  receiving  an  indemnity.  He  also 
gave  the  defendant  notice  that,  if  the  vessel  was  not  delivered  within 
the  16  lay  days,  he  should  insist  on  the  demurrage.  The  bills  of  lad- 
ing being  delayed,  the  vessel  was  not  completely  delivered  till  8  days 
after  the  expiration  of  the  16.  The  defendant  paid  the  freight,  but 
refused  to  pay  the  demurrage.  He  now  objected,  that  he  having  de- 
manded the  goods,  and  offered  to  accept  them,  the  vessel's  delay  was 
caused  by  the  plaintiff's  own  fault,  and  therefore  he  was  not  entitled 
to  recover,  and  ]^Iansfield,  C.  J.,  being  struck  with  the  objection,  non- 
suited the  plaintiff,  with  liberty  to  move  to  enter  a  verdict  for  the 
plaintiff  for  eight  days  demurrage.' 

Shepherd,  Serjt.,  had  in  Easter  term  obtained  a  rule  nisi  to  set  aside 
the  nonsuit  and  enter  a  verdict  for  £64  for  the  plaintiff. 

Lens,  Serjt.,  in  this  term,  showed  cause. 

Mansfield,  C.  J.  This  is  quite  a  new  case,  arising  from  the  new 
state  of  trade,  and  there  is  great  weight  in  the  observation  made  for 
the  plaintiff,  that  many  of  these  ships  coming  from  a  foreign  country, 
to  which  they  may  never  go  again,  put  into  their  bill  of  lading  a  con- 
dition which  enables  them  to  look  to  the  consignee  for  demurrage  as 
well  as  for  freight.  My  brothers  are  very  clearly  of  opinion,  that  if 
the  consignee  will  take  the  goods,  he  adopts  the  contract. 

Heath,  J.  It  is  clear  the  plaintiff'  is  entitled  to  demurrage,  either 
from  the  consignor  or  consignee.  Demurrage  is  only  an  extended 
freight,  and  the  consignee,  by  adopting  this  bill  of  lading,  makes  him- 
self liable  to  demurrage  as  well  as  to  freight. 

through  no  fault  of  theirs,  they  are  not  bound  to  pay  the  managing  owner  of 
the  ship  the  penalty  above  said  and  which  has  been  agreed  upon  between  them, 
nor  indeed  the  expenses  which  the  managing  owner  of  the  ship  has  incurred  in. 
the  same  matter." 
2  Part  of  the  statement  has  been  omitted. 


Ch.  3)  DISPATCH    AKD    DEMURRAGE.  301 

Cpiambre,  J.  It  would  be  monstrous,  if  the  consignee,  accepting 
the  contract  with  knowledge  of  the  terms,  should  not  be  bound  by  it, 
and  could  send  the  captain  back  to  the  consignor  for  demurrage. 
Therefore  the  rule  must  be  made  absolute.^ 


BIRLEY  V.  GLADSTONE. 

(Court  of  Kings  Bench,  1S14.    3  Maule  &  vS.  205.) 

Assumpsit  on  the  money  counts.  Plaintiff  had  a  verdict  subject 
to  the  opinion  of  the  court  upon  a  case  stated  in  substance  as  fol- 
lows: Defendants,  owners  of  the  ship  Atlas,  by  charter  party  under 
seal  covenanted  with  Holt  for  a  voyage  from  Liverpool  to  ports  in 
Russia  and  back.  Holt  to  furnish  a  full  cargo  each  way,  4o  running 
days  to  be  allowed  for  the  discharge  of  the  outward  and  loading  of 
the  return  cargo,  with  a  provision  that  Holt  might  keep  the  ship  on 
demurrage  beyond  the  45  days  at  15  guineas  a  day.    When  the  vessel 

3  Ace.  Dobbin  v.  Thornton,  6  Esp.  IG  (ISOG) ;  Harman  v.  Clarke,  4  Camp. 
159  (1815) ;  Huntley  v.  Dows.  .55  Barb.  (N.  Y.)  .310  (1864).  damages  for  deten- 
tion. See,  also,  Wegener  v.  Smith,  15  C.  B.  285  (1854)  ;  Donaldson  v.  Mc- 
Dowell. Holmes.  290.  T'ed.  Cas.  No.  3.985  (1873) ;  Crawford  v.  Mellor,  1  Fed. 
638  (1880) ;  Hawgood  v.  1310  Tons  of  Coal  (D.  C.)  21  Fed.  681  (1884) ;  Seholl 
V.  Albanj'  Co..  101  N.  Y.  602.  5  N.  E.  782  (1886);  275  Tons  of  Phosphate.  9 
Fed.  209  (1881),  buyer  at  marshal's  sale;  Garfield  v.  Fitchburg  R.  Co..  166 
Mass.  119.  44  N.  E.  119  (1890).  But  see  Young  v.  Moeller,  5  E.  &  B.  755  (1855) ; 
Gage  v.  Mor.se,  12  Allen  (Mass.)  410,  90  .Ua.  Dee.  155  (1866).  Compare  Ser- 
raino  v.  Campl>ell.  [1891]  1  Q.  B.  283,  demurrage  at  port  of  loading ;  Chappel 
V.  Comfort,  10  C.  B.  (X.  S.)  802  (1861;,  marginal  clause,  "There  are  eight  days 
for  unloading." 

"The  bills  of  lading,  as  already  mentioned,  provide  only  for  'paying  freight 
for  said  lumber  as  per  charter  party  dated  7th  March.  1893.  and  average  ac- 
customed.' They  do  not  mention  demurrage,  or  refer  to  any  provisions  of 
the  charter,  other  than  those  concerning  freight  and  average.  It  is  well  set- 
tled that  a  bill  of  lading  in  such  a  form  does  not  subject  an  indorsee  thereof, 
who  receives  the  goods  under  it.  to  any  of  those  other  provisions  of  the  char- 
ter. It  does  not  give  him  notice  of,  or  render  him  liable  to,  the  specific  pro- 
visions of  the  charter,  which  require  the  discharge  of  a  certain  quantity  of 
lumber  per  day,  or,  in  default  thereof,  the  payment  of  a  specific  sum  for  the 
longer  detention  of  the  vessel ;  but  he  is  entitled  to  take  the  goods  within  a 
reasonable  time  after  arrival,  and  is  liable  to  pay  damages  for  undue  delay 
in  taking  them,  according  to  the  ordinary  rules  of  law  which  govern  in  the 
absence  of  specific  agreement."  Gray.  J.,  in  Grossman  v.  Burrill,  179  U.  S. 
100.  21  Sup.  Ct,  38,  45  L.  Ed.  106  (1900). 

In  Leer  v.  Yates,  3  Taunt.  387  (1811),  bills  of  lading  provided  that  the 
goods  were  "to  be  taken  out  in  20  days  after  arrival,  or  to  pay  £4  per  day  de- 
murrage," Consignees  of  goods  stowed  at  the  bottom  of  the  hold  were  pre- 
vented from  taking  them  out  by  the  delay  of  the  consignees  of  the  goods 
stowed  on  top.  Mansfield.  C.  J.,  said;  "It  is  impossible  to  decide  these  three 
very  singular  cases  without  being  struck  with  the  enormous  gain  which  the 
owner  may  get  by  this  bill  of  lading,  and  which  may  possibly  much  exceed 
what  in  justice  and  conscience  he  ought  to  have.  This  Is  a  general  ship ; 
30  or  40  persons  may  have  goods  on  board,  and  for  every  one  of  them  the 
owner  may  have  his  £4  per  day." 

Ace.  Dobson  v.  Droop,  M.  &  M.  441  (1830) ;  Brett,  L.  J.,  in  Porteus  v.  Wat- 
ney,  3  Q.  B.  D.  534,  543  (1878). 


302  THE   OBLIGATION   OF   THE   SHIPPER.  (Part    3 

was  nearly  loaded  for  her  return  voyage,  Holt  had  become  bankrupt 
and  was  indebted  to  his  agent  at  the  loading  port.  In  consequence  of 
proceedings  begun  by  the  agent,  part  of  the  cargo  was  removed  by 
officers  of  the  Russian  government,  and  the  ship  delayed  beyond  the 
45  days.  On  her  arrival  at  Liverpool,  plaintiff,  who  was  Holt's  as- 
signee in  bankruptcy,  paid  freight  on  the  goods  carried,  but  defendants 
would  not  deliver  them  unless  payment  was  also  made  for  detention 
of  the  vessel  and  for  freight  lost  by  the  failure  to  load  a  full  cargo 
and  by  the  removal  of  cargo  loaded.  Plaintifif  to  obtain  the  goods 
paid  under  protest  the  amount  demanded  and  brought  this  action  to 
get  his  money  back. 

Lord  Ellkxborough,  C.  J.*  I  am  clearly  of  opinion  that  no  lien 
existed  at  the  time  of  bringing  this  action,  the  only  demand  upon 
which  a  lien  did  exist,  that  is,  on  the  cargo  actually  brought  home, 
having  been  satisfied.  Freight  is  only  due  at  the  common  law  for 
the  regularly  bringing  of  the  goods  to  the  place  of  destination,  pursu- 
ant to  the  stipulations  and  terms  of  the  charter  party.  If  there  be 
not  a  regular  loading  of  the  goods  on  the  part  of  the  freighter  so  as 
to  give  occasion  to  the  earning  of  freight,  that  becomes  the  subject  of 
dead  freight,  and  is  a  claim  to  be  made  by  the  shipowner  upon  the 
covenant,  or  if  the  goods  having  been  once  regularly  put  on  board, 
cause  shall  afterwards  be  given  by  the  freighter,  which  prevents  the 
freight  from  becoming  due  on  them,  in  that  case  also  it  is  a  subject  of 
claim  under  the  covenant  contained  in  the  charter  party.  Here  the 
question  is  not  whether  there  be  any  remedy  by  action,  but  only 
whether  there  be  the  specific  remedy  of  lien  on  the  cargo.  A  great 
deal  of  argument  has  been  very  ingeniously  rested  on  the  clause  which 
is  to  be  found  at  the  conclusion  of  the  charter  party,  by  which  the 
parties  "mutually  bind  and  oblige  themselves,  especially  the  owners, 
the  ship,  her  tackle  and  appurtenances,  and  the  freighter,  the  goods 
and  merchandizes,  to  be  laden  and  put  on  board  the  ship  on  that  voy- 
age, each  unto  the  other  in  the  penal  sum  of  i3,000."  This  is  a  mu- 
tual penalty,  but  if  we  are  to  consider  the  clause  in  the  way  of  a  lien, 
the  remedy  will  not  be  mutual ;  it  will  stand  thus,  that  the  owner  of 
the  ship  may  detain  the  goods  of  the  freighter  as  a  security  for  the 
performance  of  covenants,  but  the  freighter  can  never  detain  the  ship, 
so  that  there  will  be  no  mutuality  of  lien  between  them.     *     *     * 

The  clause  is  not  familiar  to  us  in  England,  but  has  been  imported 
from  Pothier.  It  is,  like  the  charter  party,  I  believe,  of  French  origin, 
and  I  know  not  whether  there  may  not  be  some  immediate  proceed- 
ing upon  it  in  that  country.  *  *  *  But  it  is  absurd  to  imagine 
that  this  clause,  which  cannot  be  mutually  obligatory,  was  intended  to 
give  a  lien  on  one  side  without  the  like  remedy  on  the  other.  Whatever 
benefit  therefore  is  to  be  derived  out  of  it,  seems  as  if  it  must  be  de- 

4  The  statement  of  facts  has  been  rewritten,  and  parts  of  Lord  Ellenbor- 
ough's  opinion  omitted.     Bayley,  J.,  delivered  a  concurring  opinion. 


Ch.  3)  DISPATCH    AND    DEMURRAGE.  303 

rived  through  the  medium  of  a  court  of  equity.  There  has  been  no 
remedy  afforded  under  it  in  a  court  of  law,  and  still  less  by  means  of 
actual  lien ;  which  is  the  act  of  the  party.  This  is  not  freight  earned 
within  the  terms  of  the  charter  party ;  it  falls  under  the  general  cove- 
nants, either  for  demurrage  or  for  providing  a  full  cargo,  but  the  par- 
ty cannot  have  this  suppletory  remedy  by  way  of  lien.  It  would  be 
going  too  far  to  hold  that  this  clause  gave  him  a  lien  for  the  nonper- 
formance of  covenants.  If  he  had  a  lien,  the  consequence  would  be 
that  the  other  party  might  obtain  the  goods  clear  of  the  lien  by  tender- 
ing the  money ;  but  he  could  not  by  so  doing  absolve  himself  from  the 
nonperformance  of  covenants.     *     *     * 

IvE  Blanc,  J.  This  is  a  question,  not  arising  upon  an  action 
brought  to  recover  the  value  of  the  goods  from  the  shipowners,  but 
upon  an  action  brought  by  the  assignee  of  the  freighter  to  recover 
money  paid  by  him  to  the  shipowners  under  protest.  With  respect 
to  the  cargo  which  has  been  brought  home  there  is  not  any  question ; 
because  it  is  clear  the  shipowners  were  entitled  to  detain  it,  until  the 
money  due  for  freight  was  paid.  As  to  that  therefore  there  can  be 
no  doubt  that  the  plaintiff  is  not  entitled.  The  next  question  arises 
upon  a  claim  for  dead  freight,  or  unoccupied  space,  wdiether  the  ship- 
owners can  detain  the  cargo  actually  brought  home  until  they  are 
satisfied  in  payment  for  a  full  cargo.  And  the  next  question  arises 
upon  a  claim  for  demurrage.  With  respect  to  these  two  claims,  I 
think  that  no  question  could  have  been  made,  had  it  not  been  for  the 
concluding  penal  clause  in  the  charter  party ;  for  without  that,  the  case 
of  Phillips  v.  Rodie,  15  East,  547,  would  have  precluded  the  question. 
These  two  points  therefore  depend  upon  that  clause. 

There  is  only  one  more  remaining  question,  which  arises  upon  a 
claim  made  for  freight,  in  respect  of  goods  which  were  actually  put 
on  board  in  Russia,  but  taken  out  again  by  process  conformably  to 
the  Russian  law,  in  consequence  of  the  charterer  having  failed  in  an- 
swering the  bills  drawn  upon  him.  That  question  depends  upon 
whether  freight  was  earned  in  respect  of  them  so  as  to  entitle  the  ship- 
owners to  detain.  The  two  points  upon  the  claim  for  demurrage  and 
dead  freight  have  been  fully  discussed  and  explained  by  my  Lord. 
It  is  impossible  that  this  obligatory  clause  can  be  construed  to  mean 
that  the  owners  of  the  ship  should  have  a  lien  on  the  goods  brought 
home,  for  every  breach  of  covenant  contained  in  the  charter  party,  as 
for  instance  the  not  loading  a  full  cargo  and  for  demurrage.  The 
remedy  for  such  matters  rests  entirely  in  covenant.  The  clause  could 
not  mean  to  give  the  shipowners  a  lien.  If  such  had  been  its  inten- 
tion it  might  easily  have  been  expressed  in  a  very  few  words,  that  the 
shipowners  should  have  the  right  to  detain  the  goods  which  should 
be  brought  home,  until  all  their  demands  under  the  covenants  were 
satisfied.  Instead  of  this,  the  clause  in  question  is  introduced,  not 
for  the  first  time,  the  effect  of  which,  whatever  it  may  be,  cannot  be 
attained  fully  in  a  court  of  law.     One  strong  argument  against  it  is, 


304  TUE   OBLIGATION   OF   THE   SHIPrKR,  (Part   3 

that  one  party  cannot  by  possibility  avail  himself  of  the  lien,  I  mean  the 
owner  of  the  goods  cannot  withhold  the  ship ;  and  so  I  think  the  ship- 
owners cannot  avail  themselves  of  this  clause,  to  detain  the  goods  un- 
til these  specific  sums  are  paid,  or  in  other  words,  their  demands  under 
the  covenants  are  satisfied.  They  must  rest  on  the  compensation  to  be 
obtained  in  damages  for  the  several  breaches  of  covenant. 

As  to  the  last  point,  I  mean  the  claim  in  respect  of  those  goods 
which  were  put  on  board  and  afterwards  relanded  and  restored,  I 
think  the  goods  cannot  be  considered  as  having  become  liable  to 
freight,  because  no  freight  was  earned  upon  them.  There  is  no  case 
to  show  that  freight  has  been  considered  as  earned  for  goods  merely 
put  on  board,  and  not  carried  home,  but  taken  away,  before  any  step 
made  towards  the  performance  of  the  voyage.  It  might  be  a  breach 
of  covenant  to  unload  them,  after  they  were  once  on  board,  and  there- 
by prevent  the  party  from  acquiring  his  freight  upon  them,  but  freight 
cannot  be  considered  as  earned  merely  from  the  circumstance  of  the 
goods  having  been  put  on  board.  An  action  might  lie  against  the 
party  for  misconducting  himself,  but  I  cannot  consider  that  freight 
has  been  earned  upon  them,  subject  to  the  payment  of  which  the  ship- 
owners are  entitled  to  detain  the  goods  actually  brought  home.  Nei- 
ther am  I  prepared  to  say  that  the  freighter's  agent  abroad  was  to  be 
considered  as  acting  in  respect  of  the  relanding  of  the  goods  as  agent 
for  the  freighter  at  home.  He  acted  indeed  as  his  agent  in  loading 
the  goods,  but  hostilely  to  his  employer  afterwards,  when  he  proceeded 
under  the  process  of  the  courts  in  Russia,  though  what  was  done  by 
him  was  in  consequence  of  the  act  of  his  principal. 

It  seems  to  me  impossible  in  any  view  of  the  case,  in  a  court  of  law 
to  consider  that  the  shipowners  are  entitled  to  detain  these  goods  for 
this  sum  of  money  claimed  as  freight.  Consequently,  the  defendants 
are  only  entitled  so  far  as  freight  is  due  to  them  on  the  first  point. 
With  respect  to  the  other  three  sums  of  money,  I  think  the  plaintiff  is 
entitled  to  recover. ° 


8  Ace.  Phillips  V.  Roclie,  15  East,  547  (1812);  Nicolette  Lumber  Co.  v.  People's 
Lumber  Co.,  213  Pa.  379,  62  Atl.  lOGO,  3  L.  R.  A.  (N.  S.)  327,  110  Am.  St.  Rep. 
550  (1906),  unreasonable  detention. 

Maeitime  Lien  for  Deseurrage.— A  carrier  by  sea  may  proceed  in  ad- 
miralty by  suit  against  his  cargo  to  have  it  sold  to  satisfy  a  claim  for  stip- 
ulated demurrage  or  for  damages  from  the  detention  of  his  vessel.  This  right, 
called  a  "maritime  lien,"  is  not  dependent  upon  an  agreement  for  a  lien,  a 
right  of  detainer,  or,  it  seems,  a  personal  claim  against  the  consignee.  It  is 
not  necessarily  lost  by  delivery;  but  it  may  be  relinquished  by  delivery,  or  de- 
feated as  against  a  consignee  by  giving  a  bill  of  lading  whose  terms  are  In- 
consistent with  it.  The  Hyperion's  Cargo,  2  Lowell.  93,  Fed.  Cas.  No.  6,987 
(1871) ;    Pioneer  Fuel  Co.  v.  McBrier,  84  Fed.  495,  28  C.  C.  A.  466  (1897). 

Meaning  of  "Demurrage."— In  Gray  v.  Carr.  L.  R.  6  Q.  B.  522  (1871),  the 
charter  party  provided  that  50  running  days  should  be  allowed  the  merchant 
for  loading,  "and  10  days  on  demurrage  over  and  above  the  said  laying  days, 
at  £8  per  day,"  and  that  the  carrier  should  have  a  lien  on  the  cargo  for  all 
freight  and  demurrage.  It  was  held  that  this  did  not  give  a  lien  for  damages 
arising  from  the  detention  of  the  ship  beyond  the  10  days.    Cleasby,  J.,  said: 


Ch.  3)  DISPATCH   AND   DEMURRAGE.  305 

CROMMELIN  v.  NEW  YORK  &  H.  R.  CO. 

(Court  of  Appeals  of  New  York,  18G8.    43*  N.  Y.  90,  1  Abb.  Dec.  472.) 

Action  to  recover  possession  of  blocks  of  marble  shipped  to  plain- 
tiff over  the  Hne  of  defendant  railroad  company.  Plaintiff  had  paid 
the  freight.  The  trial  judge  in  effect  told  the  jury  that  defendant 
had  a  lien  by  reason  of  plaintiff's  delay  in  taking  the  goods.  Defend- 
ant had  a  verdict.  The  General  Term  ordered  a  new  trial.  Defend- 
ant appealed.^ 

Hunt,  C.  J.  It  is  to  be  assumed,  from  the  evidence  and  from  the 
finding  of  the  jury,  that  the  plaintiff  had  received  notice  of  the  ar- 
rival of  his  marble.  It  is  to  be  further  assumed,  although  the  evi- 
dence was  contradictory  on  that  point,  that  the  plaintiff  had  been  in- 
formed by  the  agent  of  the  defendants,  that  a  charge  would  be  made 
for  the  detention  of  the  cars  longer  than  48  hours.  Had  an  action 
been  brought  to  recover  the  damages  or 'the  agreed  price  for  this 
detention,  it  would,  upon  these   facts,  have  been  sustainable. 

The  legal  question  here  is,  Had  the  defendants  a  lien  upon  the  mar- 
ble for  the  delay  in  taking  it,  which  justified  their  refusal  to  deliver 
j|.p  *  *  *  jn  the  present  case  the  marble  was  not  deposited  in  any 
warehouse  or  place  of  storage.  The  character  of  a  warehouseman, 
or  any  liability  for  its  protection  or  storage,  after  48  hours,  was  ex- 
pressly disclaimed  by  the  defendants,  in  their  notice  of  October  12th.' 
It  was  never  removed  from  the  cars,  but  remained  upon  them  in  the 
pubhc  highway,  until  after  the  plaintiff  had  demanded  its  delivery  to 
him.  The  defendants  insist  that  by  the  goods  being  left  upon  their 
cars,  and  by  the  delay  of  the  plaintiff  to  remove  them  within  48  hours 
after  their  arrival,  injury,  inconvenience,  and  expense  was  suffered  by 
them.  This  is  quite  probable.  It  constitutes,  however,  a  claim  in  the 
nature  of  demurrage,  and  does  not  fall  within  the  principle  of  those 
transactions,   which  give  a  lien  upon  the  goods.     It  is  a  breach  of 

"iNow  the  word  'demurrage'  has  a  known  legal  meaning,  viz.,  the  additional 
period  during  which  the  vessel  may  remain  by  agreement  of  the  parties.'' 

But  in  Lockhart  v.  Falk,  L.  R.  10  Ex.  1.32  (187.5),  the  same  judge  said: 
"The  word  'demurrage'  no  doubt  properly  signifies  the  agreed  additional  pay- 
nieut  (generally  per  day)  for  an  allowed  detention  beyond  a  period  either 
specified  in  or  to  be  collected  from  the  instrument ;  but  it  has  also  a  popular 
or  more  general  meaning  of  compensation  for  undue  detention,  and  from  the 
whole  of  each  charter  party  containing  the  clause  in  question  we  must  col- 
lect what  is  the  proper  meaning  to  be  assigned  to  It." 

"Agreements  for  days  on  demurrage  are  now  comparatively  rare.  The  more 
usual  plan  is  to  fix  a  rate  of  'demurrage'  to  be  paid  where  the  allowed  time 
is  exceeded ;  that  is,  where  the  contract  is  broken.  But,  further,  the  word  is 
commonly  used  to  denote  all  payments  claimed  for  detention,  whether  the 
detention  has  been  allowed  by  the  contract  or  not,  and  whether  the  rate  has 
been  fixed  or  not."    Carver,  Carriage  by  Sea,  §  648,  note. 

6  The  statement  has  been  rewritten,  and  parts  of  the  opinion  of  Hunt,  C.  J., 
have  been  omitted. 

Green  Carr. — 20 


306  THE   OBLIGATION   OF  THE   SHIPPER.  (Part    3 

contract  simply,  for  which,  as  in  case  of  a  contract  in  reference  to 
pilotage  or  port  charges,  the  party  must  seek  his  redress  in  the  ordi- 
nary manner.  Abb.  on  Shipp.  286;  Birley  v.  Gladstone,  3  M.  &  S. 
;i05   [ante,  p.  301].     *     *     * 

ClerkE,  J.,  also  expressed  the  opinion  that  the  use  of  the  cars  while 
standing  in  the  street  was  not  storage,  and  gave  no  lien  for  the  charge 
therefor. 

A  majority  of  the  Judges  concurred. 

Order  affirmed,  with  costs,  and  judgment  absolute  for  plaintiff.'' 

7  Ace.  Chicago  &  N.  W.  Ry.  Co.  v.  Jenkins.  103  111.  588  (1882) :  Burlington  & 
M.  R.  Co.  V.  Chicago  Lumber  Co.,  15  Neb.  390,  19  N.  W.  451  (1SS4) ;  Wallace  v. 
B.  &  O.  Co.,  216  Pa.  311,  65  Atl.  665  (1907). 


Ch.  4)  COMPENSATION  FOR  EXTRAORDINARY  SERVICES.  307 

CHAPTER  IV 
COMPENSATION  FOR  EXTRAORDINARY  SERVICES 


MILLER  V.   AIANSFIELD. 

I^upreme  Judicial   Court  of  Massachusetts,  1873.     112  Mass.  260.) 

Tort  for  conversion  of  100  barrels  of  flour.  The  evidence  offered 
by  defendant  tended  to  show  that  he  was  an  agent  of  the  Housatonic 
Railroad  Company,  over  whose  line  the  flour  had  been  shipped  to 
plaintiff,  that  plaintiff  allowed  the  flour  to  remain  on  the  car  for  five 
days  after  notice  of  its  arrival,  and  that  defendant  then  refused  to 
permit  him  to  remove  it,  though  tendered  the  freight,  unless  he  alsO' 
paid  a  charge  of  $3  a  day  for  delay  in  unloading  beyond  2i  hours. 
Other  facts  are  stated  in  the  opinion.  The  court  instructed  the  jury 
that  there  was  no  lien  for  the  charge  for  delay  in  unloading,  and  plain- 
tiff had  a  verdict.    Exceptions.^ 

jNIgrton,  J,  For  the  purposes  of  this  hearing,  all  the  facts  which 
the  defendant  offered  to  show  are  to  be  taken  as  established.  We 
must  assume,  therefore,  that  there  was  an  existing  regulation  and 
usage  of  the  Housatonic  Railroad  Company  that  car  loads  of  freight 
like  that  of  the  plaintiff's  should  be  unloaded  by  the  consignee  within 
24  hours  after  notice  to  him  of  their  arrival,  that  for  delay  in  unload- 
ing, after  24  hours,  the  consignee  should  pay  $2  a  day  for  each  car 
belonging  to  other  railroad  companies,  and  that  this  regulation  and 
usage  was  known  to  the  plaintiff. 

Being  known  to  the  plaintiff,  it  is  to  be  presumed,  in  the  absence 
of  any  evidence  to  the  contrary,  that  the  parties  contracted  in  ref- 
erence to  it.  It  enters  into  and  forms  part  of  their  contract,  and  the 
railroad  company  is  entitled  to  recover  the  amount  fixed  by  the  usage, 
by  virtue  of  the  plaintiff's  promise  to  pay  it.  This  charge  is,  in  its 
essential  character,  a  charge  for  storage.  After  the  arrival  of  the 
goods  at  their  destination  the  liability  of  the  company  as  common 
carriers  ceased,  but  they  became  liable  for  the  custody  of  the  goods 
as  w^arehousemen,  and,  if  they  were  not  removed  within  a  reasonable 
time,  were  entitled  to  compensation,  for  which  they  had  a  lien  as  ware- 
housemen. Norway  Plains  Co.  v.  Boston  &  Maine  Railroad,  1  Gray, 
263,  61  Am.  Dec.  423.  The  parties,  by  their  agreement,  fixed  the  rate 
of  compensation  which  the  company  should  receive  and  the  time  when 
it  should  commence.  It  is  not  material  that  the  goods  remained  in  the 
cars  instead  of  being  put  into  a  storehouse.    The  responsibility  of  the 

1  The  statemeut  of  facts  has  been  rewritten. 


308  THE   OBLIGATION   OF   THE   SHIPPER.  (Part    3 

company  for  their  custody  was  the  same  as  if  they  had  been  stored, 
and  they  had  the  right  to  retain  them  until  their  charg-es  were  paid. 

We  are  of  opinion,  therefore,  that  instructions  should  have  been 
given  substantially  as  requested  by  the  defendant,  and  that  the  pre- 
siding judge  erred  in  the  instructions  which  he  gave. 

Both  parties  have  assumed  that  the  question  involved  in  the  case 
is  the  same  as  if  the  suit  had  been  directly  against  the  railroad  com- 
pany, and  we  have,  therefore,  so  treated  it. 

Exceptions  sustained.- 


CARGO  ex  ARGOS. 
(Privy  CouncU,  1873.     L.  IL  5  P.  C.  134.) 

Action  in  admiralty  for  freight,  demurrage,  and  expenses  against 
147  barrels  of  petroleum.  The  plaintiff  owned  the  steamship  Argos, 
and  employed  her  with  other  ships  in  trade  between  London  and  ports 
in  the  north  of  France.  Defendant  shipped  the  petroleum  on  the 
Argos  under  a  bill  of  lading  by  whose  terms  it  was  to  be  delivered  at 
Havre  to  his  order.  The  vessel  sailed  for  Havre  with  a  general  cargo, 
but  on  arrival  the  authorities  compelled  her  to  leave  the  port  because 
of  the  petroleum;  France  being  then  at  war  with  Germany  and  muni- 
tions of  war  lying  about  the  quay.  Her  master  took  her  to  Honfleur 
and  to  Trouville,  but  was  compelled  for  the  same  reasons  to  leave 
those  ports.  He  then  returned  to  Havre  and  obtained  permission  to 
discharge  the  petroleum  into  a  lighter  in  the  outer  harbor  and  the 
rest  of  the  cargo  at  the  quay,  which  was  done.  When  the  Argos  was 
ready  to  return  to  London,  the  petroleum  had  been  four  days  on  the 
lighter,  ready  for  delivery,  but  no  one  had  appeared  to  take  it.  The 
master  reloaded  it  and  brought  it  back  to  London.  The  amounts 
claimed  in  the  action  included  the  till  of  lading  freight  to  Havre  of 
£24.  4s.,  an  equal  sum  as  freight  back  to  London,  the  hire  of  the  lighter 
at  Havre,  extra  coal  consumed,  and  other  expenses  incurred  in  going 
into  Honfleur  and  Trouville,  and  demurrage  at  the  bill  of  lading  rate 
for  time  so  lost.     The  trial  judge  allowed  the  claim  in  full.^ 

Sir  Montague  E.  Smith.     *     *     *     It  can  scarcely  be  contended 

2  Acc.  Miller  v.  Ga.  R,  Co.,  88  Ga.  563,  15  S.  E.  316,  IS  U  R.  A.  323,  30  Am. 
St.  Rep.  170  (1891) ;  Norfolk  &  W.  R.  Co.  v.  Adams.  90  Va.  393,  18  S.  E.  673, 
22  L.  R.  A.  530,  44  Am.  St.  Rep.  916  (1894) ;  Gulf  City  Co.  v.  Louisville  &  N. 
R.  Co.,  121  Ala.  021,  25  South.  579  (1899);  Darlington  v.  Mo.  Pac.  Rv.  Co.,  99 
Mo.  App.  1,  72  S.  W.  122  (1902) ;  Schumacher  v.  C.  &  N.  Ry.  Co.,  207  111.  199, 
69  N.  E.  825  (1904),  and  cases  cited  22  L.  R.  A.  530,  note.  And  see  Ky.  Wagon 
Mfg.  Co.  V.  Ohio  &  M.  R.  Co.,  98  Ky.  152,  32  S.  W.  995,  36  L.  R.  A.  850,  56  Am. 
St.  Rep.  326  (1895). 

3  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion 
-omitted. 


Ch.  4)  COMPENSATION  FOR  EXTRAORDINARY  SERVICES.  <{09 

that  the  master  would  have  been  justified,  when  he  found  the  petrole- 
tmi  could  not  be  landed,  in  at  once  leaving  the  port  without  waiting 
a  reasonable  time  to  give  to  the  defendant  an  opportunity  of  receiving 
it  there.  He  might,  even  if  the  prohibition  had  not  existed,  have  de- 
sired to  send  the  goods  to  Rouen  or  elsewhere  by  water,  instead  of 
landing  them.  Their  Lordships,  therefore,  think  that  the  means  of 
performing  the  contract  were  not  exhausted,  nor  the  contract  dis- 
solved, when  it  was  found  the  ship  could  not  be  discharged  at  the 
quay  and  the  cargo  landed,  and  that  they  ought  to  hold  that,  the  mas- 
ter being  ready  and  able  to  give  delivery  in  the  harbor,  and  having 
kept  the  goods  a  reasonable  time  there  for  the  purpose,  the  freight  has 
been  earned.     *     *     * 

The  next  question  to  be  considered  is  whether  the  plaintiff  is  en- 
titled to  compensation  in  the  shape  of  homeward  freight  for  bringing 
the  petroleum  back  to  England.  It  seems  to  be  a  reasonable  infer- 
ence, from  the  facts,  that  after  the  four  days  during  which  the  petro- 
leum had  been  lying  in  the  harbor  had  expired,  the  authorities  would 
not  have  allowed  it  to  remain  there.  It  was  still  in  the  master's  pos- 
session, and  the  question  is  whether  he  should  have  destroyed  or  saved 
it.  If  he  was  justified  in  trying  to  save  it,  their  Lordships  think  he 
did  the  best  for  the  interest  of  the  defendant  in  bringing  it  back  to 
England.  Whether  he  was  so  justified  is  the  question  to  be  consid- 
ered. 

As  pointed  out  by  the  judge  of  the  Admiralty  Court,  the  same  kind 
of  question  arose  in  Christy  v.  Row,  1  Taunt.  300.  In  that  case  Sir 
Tames  Mansfield  says:  "Where  a  ship  is  chartered  upon  one  voyage 
outwards  only,  with  no  reference  to  her  return,  and  no  contemplation 
of  a  disappointment  happening,  no  decision,  which  I  have  been  able 
to  find,  determines  what  shall  be  done  in  case  the  voyage  is  defeated. 
The  books  throw  no  light  on  the  subject.  The  natural  justice  of  the 
matter  seems  obvious ;  that  a  master  should  do  that  which  a  wise 
and  prudent  man  would  think  most  conducive  to  the  benefit  of  all 
concerned.  But  it  appears  to  be  wholly  voluntary.  I  do  not  know  that 
he  is  bound  to  do  it;  and  yet.  if  it  were  a  cargo  of  cloth  or  other  val- 
uable merchandise,  it  would  be  a  great  hardship  that  he  might  be  at 
liberty  to  cast  it  overboard.  It  is  singular  that  such  a  question  should 
at  this  day  remain  undecided." 

The  precise  point  does  not  seem  to  have  been  subsequently  decided ; 
but  several  cases  have  since  arisen  in  which  the  nature  and  scope  of 
the  duty  of  the  master,  as  agent  of  the  merchant,  have  been  examined 
and  defined,  amongst  others,  Tronson  v.  Dent,  8  Moore,  P.  C.  -119 ; 
Notara  v.  Henderson  [ante,  p.  73]  ;  Australasian  Navigation  Com- 
pany V.  Morse,  L.  R.  4  P.  C.  232.  It  results  from  them  that  not  merely 
is  a  power  given,  but  a  duty  is  cast  on  the  master  in  many  cases  of 
accident  and  emergency  to  act  for  the  safety  of  the  cargo,  in  such 
manner  as  may  be  best  under  the  circumstances  in  which  it  may  be 


310  THE   OBLIGATION  OF  THE   SHIPPER.  (Part   3 

placed,  and  that,  as  a  correlative  right,  he  is  entitled  to  charge  its 
owner  with  the  expenses  properly  incurred  in  so  doing. 

Most  of  the  decisions  have  related  to  cases  where  the  accident  hap- 
pened before  the  completion  of  the  voyage ;  but  their  Lordships  think 
it  ought  not  to  be  laid  down  that  all  obligation  on  the  part  of  the  mas- 
ter to  act  for  the  merchant  ceases  after  a  reasonable  time  for  the  lat- 
ter to  take  delivery  of  the  cargo  has  expired.  It  is  well  established 
that,  if  the  ship  has  waited  a  reasonable  time  to  deliver  goods  from 
her  side,  the  master  may  land  and  warehouse  them  at  the  charge  of 
the  merchant;  and  it  cannot  be  doubted  that  it  would  be  his  duty  to 
do  so  rather  than  to  throw  them  overboard.  In  a  case  like  the  pres- 
ent, where  the  goods  could  neither  be  landed  nor  remain  where  they 
were,  it  seems  to  be  a  legitimate  extension  of  the  implied  agency  of 
the  master  to  hold  that,  in  the  absence  of  all  advices,  he  had  authority 
to  carry  or  send  them  on  to  such  other  place  as  in  his  judgment,  pru- 
dently exercised,  appeared  to  be  most  convenient  for  their  owner; 
and,  if  so,  it  will  follow  from  established  principles  that  the  expenses 
properly  incurred  may  be  charged  to  him. 

Their  Lordships  have  no  doubt  that  bringing  the  goods  back  to 
England  was  in  fact  the  best  and  cheapest  way  of  making  them  avail- 
able to  the  defendant,  and  that  they  were  brought  back  at  less  charge 
in  the  Argos  than  if  they  had  been  sent  in  another  ship.  If  the  goods 
had  been  of  a  nature  which  ought  to  have  led  the  master  to  know 
that  on  their  arrival  they  would  not  have  been  worth  the  expenses 
incurred  in  bringing  them  back,  a  dififerent  question  would  arise.  But, 
in  the  present  case,  their  value,  of  which  the  defendant  has  taken  the 
benefit  by  asking  for  and  obtaining  the  goods,  far  exceeded  the  cost. 

The  authority  of  the  master,  being  founded  on  necessity,  would  not 
have  arisen,  if  he  could  have  obtained  instructions  from  the  defend- 
ant or  his  assignees.  But  under  the  circumstances  this  was  not  pos- 
sible.    Indeed  this  point  was  not  relied  on  at  the  bar. 

Their  Lordships,  for  the  above  reasons  are  of  opinion  that  the 
plaintiff  has  made  out  a  case  for  compensation  for  bringing  back  the 
goods  to  England. 

But  they  think  the  plaintiff  is  not  entitled  to  recover  the  amount 
claimed  for  demurrage  and  expenses  in  attempting  to  enter  the  ports 
of  Honfleur  and  Trouville.  These  efforts  may  have  been  made  by 
him  in  the  interest  of  the  cargo  as  well  as  the  ship ;  but  they  were 
made  before  the  ship  was  ready  to  deliver  at  all  in  the  port  of  Havre, 
and  the  expenses  of  this  deviation  and  of  the  return  to  Havre,  after 
permission  had  been  obtained  to  discharge  there,  must  be  treated  as 
expenses  of  the  voyage,  and  not  as  incurred  for  the  benefit  of  the  de- 
fendant. 

The  charges  for  the  hire  of  the  vessel  and  of  storing  the  petrole- 
um in  her  at  Havre,  after  permission  had  been  obtained  for  its  dis- 
charge there,  stand  on  different  ground.  If  the  ship  had  then  waited 
in  the  outer  harbor  with  the  petroleum  on  board,  the  defendant  would 


Ch.    4)  COMPENSATION  FOR  EXTRAORDINARY  SERVICES.  311 

have  been  liable  to  pay  demurrage  at  ilO.  10s.  a  day.  It  was  obvious- 
ly, therefore,  to  his  advantage  under  the  circumstances  for  the  mas- 
ter to  hire  the  vessel,  and  thus  relieve  him  from  the  heavy  demurrage 
payable  for  the  detention  of  the  ship.  The  whole  expense  of  this  op- 
eration appears  to  be  about  ilo  only. 

In  the  result  their  Lordships  think  the  plaintiff  is  entitled  to  recover 
the  outward  freight,  and  the  charge  made  for  the  carriage  back  to 
England,  together  £48.  8s.,  and  also  the  £15  for  the  above  expenses  at 
Havre,  in  all  £(33.  8s.*     *     *     * 

4  As  to  a  carrier's  right  to  reimbursement  for  expenses  incurred  in  behalf 
of  the  goods,  see  Thurston  v.  More,  2  Select  Pleas  in  Ct.  of  Admiralty,  90  (1557); 
Hingstou  V.  Wendt,  1  Q.  B.  D.  3G7  (1S76),  has  lien  for  expense  of  preserving 
goods  after  wreck  of  vessel;  Gt.  No.  Ry.  Co.  v.  Swaffleld,  L.  R.  9  Ex.  132 
(1874),  keep  of  horse  refused  by  consignee ;  Payne  v.  Ralli  (D.  C.)  74  Fed.  563 
(1896).  putting  cargo  defectivelv  packed  into  condition  for  delivery;  Guesnard 
V.  L.  &  N.  R.  Co..  76  Ala.  453  (1884) ;  Waliash  R.  Co.  v.  Pearce,  192  U.  S.  179, 
24  Sup.  Ct.  231,  48  L.  Ed.  397  (l!;x)4),  has  lien  for  customs  duties  paid;  West- 
ern Trans.  Co.  v.  Hoyt.  ante,  p.  2(;6.  payment  of  prior  carrier's  charges;  Bissel 
V.  Price,  16  III.  408  (1855),  payment  of  charges  of  shipping  agent.  And  see 
Notara  v.  Henderson,  ante.  p.  73,  and  p.  128,  note.  The  right  of  reimburse- 
ment mav  exist,  though  tlie  charge  paid  was  not  a  valid  claim.  Bowman  v. 
Hilton.  11  Ohio,  303  (1842) ;  Knight  v.  Providence,  etc.,  R.  Co..  13  R.  T.  572.  43 
Am.  Rep.  46  (1882),  payment  of  prior  carrier's  freight  uncollectible  because  of 
hidden  damage  to  goods ;  White  v.  Yann,  6  Humph.  (Tenn.)  70,  44  Am.  Dec.  294 
(1845).  r'avment  of  charges  of  shipping  agent  usual,  but  unauthorized. 

In  Wabash  v.  Pearce,  192  U.  S.  179.  24  Sup.  Ct.  231.  48  L.  Ed.  397  (1904), 
Brewer,  J.,  for  the  court,  quoted  the  following  passage  from  Overton  on  Liens, 
§  135:  "The  lien  attaches,  not  alone  for  the  particular  item  of  charge  for  car- 
riage due  upon  the  goods,  but  for  such  other  legal  charges  as  the  carrier  in 
the  course  of  his  duty  may  have  been  comi>elled  to  expend  upon  their  care, 
custody  and  preservation.  As  when  a  railway.  In  the  transportation  of  live 
stock,  as  cattle,  horses,  and  swine,  has  been  at  the  expense  of  labor  and 
money  in  feeding  and  preserving  them,  such  expense  is  a  legitimate  charge 
in  addition  to  their  transportation.  For  the  carrier  is  under  special  obliga- 
tion to  guard  and  protect  such  property,  hence  the  propriety  of  a  lien  for 
such  extraordinary  expense  and  care." 


PART  IV 

THE  EXCEPTIONAL  LIABILITY  OF  A  COMMON 

CARRIER 


CHAPTER  I 

LIABILITY  FOR  DAMAGE  OR  LOSS  IN  THE  CARRIAGE 

OF  GOODS 


WOOD.UFE'S  CASE. 

(Court  of  Queen's  Bencb,  159G.     0\YeD,  57.) 

In  an  account  the  plaintiff  declared,  that  he  delivered  goods  to  the 
defendant  to  merchandise  for  him ;  the  defendant  said,  that  the  goods 
with  divers  other  of  his  own  proper  goods  were  taken  at  sea,  where  he 
was  robbed  of  them.  And  it  was  moved  that  this  was  no  plea  in  bar 
of  an  account,  but,  if  it  be  any  plea,  it  shall  be  a  plea  before  auditors 
in  discharge ;  but  admitting  it  be  a  good  bar,  yet  it  is  not  well  pleaded, 
for  the  plaintiff  as  it  is  pleaded  cannot  traverse  the  robbing  and  try  it, 
for  things  done  super  altum  mare  are  not  tryable  here,  wherefore  the 
defendant  ought  to  have  pleaded  that  he  was  robbed  at  London,  or  any 
other  certain  place  upon  the  land,  and  maintain  it  by  proofs  that  he 
was  robbed  on  the  sea. 

Gawdy.  It  is  no  good  plea,  for  he  hath  confest  himself  to  be 
accountable  by  the  receipt,  9  Edw,  IV,  and  it  is  no  plea  before  audit- 
ors, no  more  than  the  case  was  in  9  Edw.  IV,  for  a  carrier  to  say  that 
he  was  robbed. 

PoPHAM.  It  is  a  good  plea  before  auditors,  and  there  is  a  difference 
between  carriers  and  other  servants  and  factors;  for  carriers  are  paid 
for  their  carriage,  and  take  upon  them  safely  to  carry  and  deliver  the 
things  received. 

Gawdy.  If  rebels  break  a  prison,  whereby  the  prisoners  escape,  yet 
the  gaoler  shall  be  responsible  for  them,  as  it  is  in  the  33  Hen.  VI.^ 

PoPHAM.  In  that  case  the  gaoler  hath  remedy  over  against  the 
rebels,  but  there  is  no  remedy  over  in  our  case. 

Gawdy.  Then  the  diversity  is  when  the  factor  is  robbed  by  pyrates, 
and  when  by  enemies. 

PoPHAM.     There  is  no  difference. 

iThe  Marshal's  Case,  post,  p.. 3.57,  note. 

(312) 


Ch.  1)  DAMAGE    OR   LOSS   IN    CARRIAGE    OF   GOODS.  31^ 

INIORSE  V.  SLUE. 

(Court  of  King's  Bench,  1G71.     1  Vent.  100.  23S.) 

An  action  upon  the  case  was  brought  by  the  plaintiff  against  the 
defendant;  and  he  declared,  that  whereas,  according  to  the  law  and 
custom  of  England,  masters  and  governors  of  ships  which  go  from 
London  beyond  sea  and  take  upon  them  to  carry  goods  beyond  sea,  are 
bound  to  keep  safely  day  and  night  the  same  goods,  without  loss  or 
substraction,  ita  quod  pro  defectu  of  them,  they  may  not  come  to  any 
damage;  and  whfereas  the  15  of  May  last,  the  defendant  was  master 
of  a  certain  ship  called  the  William  and  John,  then  riding  at  the  port 
of  London,  and  the  plaintiff  had  caused  to  be  laden  on  board  her  three 
trunks,  and  therein  400  pair  of  silk  stockings  and  174  pounds  of  silk, 
by  him  to  be  transported  for  a  reasonable  reward  of  freight  to  be  paid, 
and  he  then  and  there  did  receive  them,  and  ought  to  have  transported 
them,  etc.,  but  he  did  so  negligently  keep  them,  that  in  default  of  suffi- 
cient care  and  custody  of  him  and  his  servants,  17  May,  the  same 
were  totally  lost  out  of  the  said  ship. 

Upon  not  guilty  pleaded,  a  special  verdict  was  found,  viz. : 

That  the  ship  lay  in  the  river  of  Thames,  in  the  port  of  London,  in 
the  parish  of  Stepney,  in  the  county  of  Middlesex,  prout,  etc  That 
the  goods  were  delivered  by  the  plaintiff  on  board  the  ship,  prout,  etc., 
to  be  transported  to  Cadiz  in  Spain.  That  the  goods  being  on  board, 
there  were  a  sufficient  number  of  men  for  to  look  after  and  attend  her, 
left  in  her.  That  in  the  night  came  eleven  persons  on  pretence  of 
pressing  of  seamen  for  the  king's  service,  and  by  force  seized  on 
these  men  (which  were  four  or  five,  found  to  be  sufficient  as  before) 
and  took  the  goods.  That  the  master  was  to  have  wages  from  the 
owners,  and  the  mariners  from  the  master.  That  she  was  of  the  bur- 
then of  150  tons,  etc. 

So  the  question  was,  upon  a  trial  at  bar,  whether  the  master  were 
chargeable  upon  this  matter? 

[Maynard  insisted  upon  it:  That  the  master  was  not  chargeable; 
Say  they,  he  is  chargeable  whilst  he  is  here,  but  when  he  is  gone  out 
of  the  realm  he  is  not  chargeable,  though  the  goods  be  taken  from  him. 
Which  distinction,  he  said,  had  no  foundation  in  law.  Hale.  C.  J. 
It  will  lie  upon  you  that  are  for  the  defendants,  to  show  a  difference 
betwixt  a  carrier  and  the  master  of  a  ship.  And  it  will  lie  upon  you 
that  are  for  the  plaintiff,  to  show  why  a  master  of  a  ship  should  be 
charged  for  a  robbery  committed  within  the  realm,  and  not  for  a 
piracy  committed  at  sea.  It  was  urged  by  Mr.  Holt  for  the  plaintiff : 
That  a  hoyman  and  ferryman  are  bound  to  answer,  and  why  not  the 
master  of  a  ship?  The  defendant  proved:  That  there  was  no  care- 
lessness nor  negligent  default  in  him.  Maynard.  He  is  not  charge- 
able, if  there  be  no  negligence  in  him,  because  he  is  but  a  servant,  the 


314  EXCEPTIONAL   LIABILITY    OF   COMMON    CARRIER.  (Part  4 

owner  takes  the  freight.  Hale,  C.  J.  He  is  exercitor  navis.  If  we 
should  let  loose  the  master,  the  merchant  would  not  be  secure.  And 
if  we  should  be  too  quick  upon  him,  it  might  discourage  all  masters; 
so  that  the  consequence  of  this  case  is  great.]  ^ 

The  case  was  argued  two  several  terms  at  the  bar,  by  Mr,  Holt 
for  the  plaintiff,  and  Sir  Francis  Winnington  for  the  defendant,  and 
Mr.  ]\Iolloy  for  the  plaintiff,  and  Mr.  Wallop  for  the  defendant;  and 
by  the  opinion  of  the  whole  court,  judgment  was  given  this  term  for 
the  plaintiff. 

Hale,  C.  J.  delivered  the  reasons  as  followeth. 

First,  by  the  admiral  civil  law  the  master  is  not  chargeable  pro 
damno  fatali,  as  in  case  of  pirates,  storm,  etc.,  but  where  there  is 
any  negligence  in  him  he  is. 

Secondly.  This  case  is  not  to  be  measured  by  the  rules  of  the  ad- 
miral law,  because  the  ship  was  infra  corpus  comitatus. 

Then  the  first  reason  wherefore  the  master  is  liable  is,  because  he 
takes  a  reward;  and  the  usage  is,  that  half  wages  is  paid  him  before 
he  goes  out  of  the  country. 

Secondly.  If  the  master  would,  he  might  have  made  a  caution  for 
himself,  which  he  omitting  and  taking  in  the  goods  generally,  he  shall 
answer  for  what  happens.^  There  was  a  case  (not  long  since)  when 
one  brought  a  box  to  a  carrier,  in  which  there  was  a  great  sum  of 
money,  and  the  carrier  demanded  of  the  owner  what  was  in  it;  who 
answered,  that  it  was  filled  with  silks  and  such  like  goods  of  mean 
value ;  upon  which  the  carrier  took  it,  and  was  robbed.  And  resolved 
that  he  was  liable.  But  if  the  carrier  had  told  the  owner  that  it  was 
a  dangerous  time,  and  if  there  were  money  in  it,  he  durst  not  take 
charge  of  it ;  and  the  owner  had  answered  as  before,  this  matter  would 
have  excused  the  carrier. 

Thirdly.  He  which  would  take  off  the  master  in  this  case  from  the 
action  must  assign  a  difference  between  it  and  the  case  of  a  hoyman, 
common  carrier  or  innholder. 

'T  is  objected,  that  the  master  is  but  a  servant  to  the  owners. 

Answer.  The  law  takes  notice  of  him  as  more  than  a  serv^ant.  'T 
is  known,  that  h^  may  impawn  the  ship  if  occasion  be,  and  sell  bona 
peritura ;  he  is  rather  an  officer  than  a  servant.  In  an  escape  the 
jailer  may  be  charged,  though  the  sheriff  is  also  liable,  for  respondeat 
superior.  But  the  turnkey  cannot  be  sued,  for  he  is  but  a  mere  serv- 
ant ;  by  the  civil  law  the  master  or  owner  is  chargeable  at  the  election 
of  the  merchant. 

'T  is  further  objected,  that  he  receives  wages  from  the  owners. 

2  This  passage  is  taken  from  the  report  in  1  Mod.  85. 

3  "The  defendant  proved  *  *  *  that  four  is  as  many  as  are  usually  kept 
on  board  at  half  pay  because  freight  comes  in  slowly."  Mors  v.  Slew,  2  Keble, 
866  (1671).  "  *  *  *  When  he  took  in  the  goods  he  might  have  cautioned 
against  them  not  to  take  them  in  till  farther  time."  Mors  v.  Slew,  3  Keble, 
135  (1672). 


Ch.  1)  DAMAGE  OR  LOSS  IN  CARRIAGE  OF  GOODS.  315 

Answer.  In  effect  the  merchant  pays  him,  for  he  pays  the  owners 
freight,  so  that  'tis  but  handed  over  by  them  to  the  master;  if  the 
freight  be  lost,  the  wages  are  lost  too,  for  the  rule  is,  freight  is  the 
mother  of  wages :  therefore,  though  the  declaration  is,  that  the  mas- 
ter received  wages  of  the  merchant,  and  the  verdict  is,  that  the  own- 
ers pay  it,  't  is  no  material  variance. 

Objection.  'T  is  found,  that  there  were  the  usual  number  of  men 
to  guard  the  ship. 

Answer.  True,  for  the  ship,  but  not  with  reference  to  the  goods, 
for  the  number  ought  to  be  more  or  less  as  the  port  is  dangerous, 
and  the  goods  of  value,  33  H.  VI,  1.  If  rebels  break  a  jail,  so  that  the 
prisoners  escape,  the  jailer  is  liable ;  but  is  otherwise  of  enemies ;  so 
the  master  is  not  chargeable  where  the  ship  is  spoiled  by  pirates.  And 
if  a  carrier  be  robbed  by  an  hundred  men,  he  is  never  the  more  ex- 
cused.^ 


Holt,  C.  J.,^  dissenting,  in  LANE  v.  COTTON,  12  Mod.  472 
(1701)  :  "For  what  is  the  reason  that  a  carrier  or  innkeeper  is  bound 
to  keep  such  goods,  as  he  receives,  at  his  peril?  It  is  grounded  upon 
great  equity  and  justice;  for  if  they  were  not  chargeable  for  loss  of 
goods,  without  assigning  any  particular  default  in  them,  they  having 
such  opportunity,  as  they  have  by  the  trust  reposed  in  them,  to  cheat 
all  people,  they  would  be  so  apt  to  play  the  rogue  and  cheat  people 
without  almost  a  possibility  of  redress,  by  reason  of  the  difficulty  of 
proving  a  default  particularly  in  them  that  the  inconveniency  would 
be  very  great.  And  though  one  may  think  it  a  hard  case,  that  a  poor 
carrier  who  is  robbed  on  the  road,  without  any  manner  of  default  in 
him,  should  be  answerable  for  all  the  goods  he  takes ;  yet  the  incon- 
veniency would  be  far  more  intolerable,  if  it  were  not  so;  for  it  would 
be  in  his  power  to  combine  with  robbers,  or  to  pretend  a  robbery  or 
some  other  accident,  without  a  possibility  of  remedy  to  the  party; 
and  the  law  will  not  expose  him  to  so  great  a  temptation,  but  he  must 
be  honest  at  his  peril.     And  this  is  the  reason  of  the  civil  law  in  this 

4  "The  liability  of  the  shipowner  as  carrier  for  loss  by  thieves,  which  was 
clisoiissed  at  Westminster  in  1G71.  was  treated  as  clear  law  in  admiralty  so 
early  as  1640,  and  probably  earlier."  R.  G.  Marsden,  in  Select  Pleas  in  the 
Court  of  Admiralty,  vol.  2,  p.  Ixxx. 

Consulate  of  the  Sea,  e.  22. — Goods  which  have  been  once  put  on  board 
and  are  Inscribed  in  the  ship's  book.  If  they  are  lost  whilst  in  the  ship,  the 
managing  owner  of  the  ship  ought  to  make  compensation  for  the  goods. 

"If  a  Master  shall  receive  Goods  at  the  Wharf  or  Key.  or  shall  send  his 
Boat  for  the  same,  and  they  happen  to  be  lost,  he  shall  lil^ewise  answer  both 
by  the  Marine  Law  and  the  Common  Law.  *  *  *  He  must  not  suffer  the 
Lading  to  be  stolen  or  imbezzled;  if  the  same  be,  he  must  be  responsible,  un- 
less it  be  where  there  is  vis  major ;  as  if  he  be  assaulted  at  Sea  either  by 
Enemies,  Ships  of  Reprize,  or  Pirates,  there,  if  no  fault  or  negligence  was  in 
him.  but  that  he  performed  the  part  of  an  honest,  faithful,  and  valiant  man, 
he  shall  be  excused."    Molloy,  De  Jure  Maritimo,  bk.  II,  c.  2,  §§  2,  8. 

5  See  ante,  p.  16,  note. 


316  EXCEPTIONAL   LIABILITY   OF   COMMON   CARRIER.  (Part  4 

case,  which  though  I  am  loathe  to  quote,  yet  inasmuch  as  the  laws  of 
all  nations  are  doubtless  raised  out  of  the  ruins  of  the  civil  law,  as  all 
governments  are  sprung  out  of  the  ruins  of  the  Roman  Empire,  it 
must  be  owned  that  the  principles  of  our  law  are  borrowed  from  the 
civil  law,  and  therefore  grounded  upon  the  same  reason  in  many 
things.  Vide  Just.  Inst.  lib.  4,  tit.  5,  de  lege.**  And  all  this  may  be 
though  the  common  law  be  time  out  of  mind.  *  *  *  And  the 
diversity  between  the  case  of  a  common  carrier  and  this,  upon  ac- 
count of  the  carrier's  having  a  remedy  against  the  hundred  if  he  be 
robbed ;  it  is  none  at  all  in  the  reason  of  the  thing,  for  before  that 
remedy  was  given,  which  was  only  by  the  statute  of  Winchester,  the 
action  did  lie  against  him ;  and  yet  he  had  no  remedy  but  against  the 
robbers  if  he  could  catch  them." 

6  The  liability  under  the  Roman  law  of  a  carrier  by  sea  is  illustrated  by  the 
following  passages. 

Digest,  Book  4,  Tit.  9:  "Saith  the  Praetor — As  for  shi[)mastors,  innkeep- 
ers and  stablemen,  in  respect  to  that  whic-h  they  receive  frmu  anyone  into  their 
keeping,  unless  they  return  it.  I  will  give  judgment  against  them.  (Ait  Prae- 
tor— Nauta?.  cauix)nes.  stabularii  quod  cuiusque  salvum  fore  receperint,  nisi 
restituent,  in  eos  judicium  dabo.)" 

(Ulpian,  L.  14)  I,  §  1:  "This  edict  is  of  very  great  use  because  it  is  neces- 
sary to  put  full  faith  in  them  and  to  commit  things  to  their  guard.  Let  no 
one  think  this  harshly  decreed  against  them,  for  it  is  in  their  own  choice 
not  to  receive  a  thing :  and  unless  this  were  decreed,  opportunity  would  be 
given  of  contriving  with  lawless  men  against  those  whom  they  receive,  since 
they  do  not  even  now  abstain  from  fraud  of  this  sort." 

g  §.  <i  *  :ic  *  ^^mj  J  think  that  he  [the  shipmaster]  takes  into  safe- 
keeping all  those  things  that  are  brought  into  the  ship,  and  ought  to  be  liable 
not  only  for  the  acts  of  the  sailors  but  of  the  passengers." 

Ill,  §  1:  "  *  *  *  And  by  this  edict,  he  who  receives  is  bound  absolutely, 
although  it  is  without  his  fault  that  the  thing  perishes  or  is  damaged  unless 
it  happen  by  damnum  fatale.  Concerning  this  Labeo  writes  that  if  anything 
perishes  by  shipwreck  or  by  the  violent  acts  of  pirates,  it  is  not  unjust  that 
he  should  be  allowed  a  defence.  The  same  thing  may  be  said  if  either  in  a 
stable  or  in  an  inn  vis  major  occurs." 

Sohm's  Institutes  of  Pomax  Law,  §  83  (Ledlie's  Tbaxslation  [2d  En.T 
p.  427):  "A  shipowner,  innkeeper  or  stable  keeper  who  takes  charge  of 
property  belonging  to  a  traveller,  is  answerable  for  such  property  in  like  man- 
ner as  though  he  had  concluded  an  express  contract  to  that  effect.  This  lia- 
bility was  first  introduced  by  the  praetor.  If  the  property  in  question  is  lost 
or  injured  the  traveller  can  sue  for  full  damages  by  the  actio  de  recepto.  unless. 
indeed,  the  defendant  (the  shipowner,  etc.)  can  prove  that  the  loss  was  caused 
by  the  traveller's  own  negligence  or  by  an  unavoidable  accident  (vis  major)." 

CocKBURN.  C.  .!..  in  Nugext  v.  Smith.  1  C.  P.  D.  42.-?  (187G):  "In  the 
first  place,  it  is  a  misapprehension  to  suppo.se  that  the  law  of  England  re- 
lating to  the  law  of  common  carriers  was  derived  from  the  Roman  law ; 
for  the  law  relating  to  it  was  first  established  by  our  Courts  with  refer- 
ence to  carriers  by  land,  on  whom  the  Roman  law.  as  is  well  known,  imposed 
no  liability  in  respect  of  loss  beyond  that  of  other  bailees  for  reward.  In 
the  second  place,  the  Roman  law  made  no  distinction  between  inevitable  ac- 
cident arising  from  what  in  our  law  is  tenned  the  'act  of  God'  and  inevitable 
accident  arising  from  other  causes,  but,  on  the  contrary,  afforded  immunity 
to  the  carrier,  without  distinction,  whenever  the  loss  resulted  from  'casus  for- 
tuitus,'  or,  as  it  is  also  called,  'damnum  fatale,'  or  'vis  major'— unforeseen  and 
inevitable  accident.  *  *  *  Such  is  the  Roman  law,  and  such  is  the  ex- 
isting law  of  all  the  nations  which  have  adopted  the  Roman  law — France,. 
Spain,  Italy,  Germany,  Holland,  and  to  come  nearer  home,  Scotland." 


Ch.  1)  DAMAGE    OR   LOSS    IN    CARRIAGE    OF    GOODS.  317 

Holt,  C.  J.,  in  COGGS  v.  BERNARD  (Court  of  Queen's  Bench, 
1703)  2  Ld.  Raym.  909 :  "As  to  the  fifth  sort  of  bailment,  viz.,  a  deUv- 
ery  to  carry  or  otherwise  manag'e,  for  a  reward  to  be  paid  to  the  bailee, 
those  cases  are  of  two  sorts ;  either  a  delivery  to  one  that  exercises 
a  public  emplo}ment,  or  a  delivery  to  a  private  person.  First,  if  it 
be  to  a  person  of  the  first  sort,  and  he  is  to  have  a  reward,  he  is  bound 
to  answer  for  the  goods  at  all  events.  And  this  is  the  case  of  the 
common  carrier,  common  hoyman,  master  of  a  ship,  &c.,  which  case  of 
a  master  of  a  ship  was  first  adjudged  26  Car.  II,  in  the  case  of  Mors  v. 
Slew,  Raym.  220,  1  Vent.  190,  238  [ante,  p.  313].  The  law  charges 
this  person,  thus  intrusted  to  carry  goods,  against  all  events  but  acts  of 
God,  and  of  the  enemies  of  the  king.  For  though  the  force  be  never 
so  great,  as  if  an  irresistible  multitude  of  people  should  rob  him,  nev- 
ertheless he  is  chargeable.  And  this  is  a  politic  establishment,  con- 
trived by  the  policy  of  the  law  for  the  safety  of  all  persons,  the  neces- 
sity of  whose  affairs  oblige  them  to  trust  these  sorts  of  persons,  that 
they  may  be  safe  in  their  ways  of  dealing;  for  else  these  carriers 
might  have  an  opportunity  of  undoing  all  persons  that  had  any  deal- 
ings with  them,  by  combining  with  thieves,  &c.,  and  yet  doing  it  in 
such  a  clandestine  manner  as  would  not  be  possible  to  be  discovered. 
And  this  is  the  reason  the  law  is  founded  upon  in  that  point.  The 
second  sort  are  bailies,  factors,  and  such  like.  And  though  a  bailie 
is  to  have  a  reward  for  his  management,  yet  he  is  only  to  do  the  best 
lie  can.  And  if  he  be  robbed,  etc.,  it  is  a  good  account.  And  the  rea- 
son of  his  being  a  servant  is  not  the  thing;  for  he  is  at  a  distance 
from  his  master,  and  acts  at  discretion,  receiving  rents  and  selling  corn, 
etc.  And  yet  if  he  receives  his  master's  money,  and  keeps  it  locked 
up  with  a  reasonable  care,  he  shall  not  be  answerable  for  it,  though  it 
he  stolen.  But  yet  this  servant  is  not  a  domestic  servant,  nor  under 
his  master's  immediate  care.  But  the  true  reason  of  the  case  is,  it 
would  be  unreasonable  to  charge  him  with  a  trust,  farther  than  the 
nature  of  the  thing  puts  it  in  his  power  to  perform  it.  But  it  is  al- 
lowed in  the  other  cases,  by  reason  of  the  necessity  of  the  thing.  The 
same  law  of  a  factor." 


PROPRIETORS  OF  THE  TRENT   NA\aGATION  v.  WOOD. 

(Court  of  King's  Bench,  1785.     3  Esp.  127.) 

This  was  an  action  of  assumpsit. 

The  declaration  stated  that  the  plaintiffs,  as  proprietors  of  the  Trent 
Navigation,  undertook  to  carry  the  defendant's  goods  from  Hull  to 
Gainsborough ;  that  in  the  river  Humber,  the  vessel  on  board  which 
the  defendant's  goods  were,  sunk,  by  driving  against  an  anchor  in 
the  river;  and  the  goods  were,  in  consequence  of  the  accident,  con- 
siderably damaged.    That  the  plaintiffs  repaired  the  damage  the  goods 


818  EXCEI'TIOXAL   LIADILITY   OF   COMMON  CARRIER.  (Part  4 

had  sustained,  and  sent  them  home  to  the  defendant;  and  the  breach 
was,  that  the  defendant  refused  to  pay  the  money  the  plaintiffs  had 
expended  in  the  recovery  of  the  goods.  There  was  also  a  count  in 
the  declaration  for  money  had  and  received,  which  was  for  freight. 
At  the  trial  the  plaintiffs  were  nonsuited. 

A  rule  having  been  obtained,  to  show  cause  why  the  nonsuit  should 
not  be  set  aside,  it  came  on  to  be  argued  on  this. 

Lord  Mansfield.  This  is  certainly  a  sea  voyage.  It  is  a  general 
question,  and  no  case  has  been  cited  exactly  in  point ;  but  it  is  clear 
that  the  carrier  is  liable  in  all  cases,  except  for  accidents  happening 
by  the  act  of  God  or  by  the  king's  enemies.  The  act  of  God  is  a  nat- 
ural necessity,  and  inevitably  such,  as  winds,  storms,  etc.  The  case 
of  a  robbery  is  certainly  very  strong,  but  not  a  natural  necessity ;  and 
in  this  case  there  is  an  injury  by  a  private  man,  within  the  reason  of 
the  instance  of  robbery;  yet  I  think  the  carriers  ought  to  be  liable. 
There  is  some  sort  of  negligence  here;  for  as  the  buoy  could  not  be 
seen,  there  should  have  been,  on  that  account,  a  greater  degree  of 
caution  usedJ 


FORWARD  V.   PITTARD. 

(Court  of  King's  Bench,  1785.     1  Term  R.  27.) 

This  was  an  action  on  the  case  against  the  defendant  as  a  common 
carrier,  for  not  safely  carrying  and  delivering  the  plaintiff's  goods. 
This  action  was  tried  at  the  last  summer  assizes  at  Dorchester,  before 
J\Ir.  Baron  Perryn,  when  the  jury  found  a  verdict  for  the  plaintiff, 
subject  to  the  opinion  of  the  court  on  the  following  case : 

"That  the  defendant  was  a  common  carrier  from  London  to  Shafts- 
bury.  That  on  Thursday  the  14th  of  October,  1784,  the  plaintiff  de- 
livered to  him  on  Weyhill  13  pockets  of  hops  to  be  carried  by  him  to 
Andover,  and  to  be  by  him  forwarded  to  Shaftsbury  by  his  public 
road  waggon,  which  travels  from  London  through  Andover  to  Shafts- 
bury.  That  by  the  course  of  travelling,  such  waggon  was  not  to  leave 
Andover  till  the  Saturday  evening  following.  That  in  the  night  of 
the  following  day  after  the  delivery  of  the  hops,  a  fire  broke  out  in 
a  booth  at  the  distance  of  100  yards  from  the  booth  in  which  the  de- 
fendant had  deposited  the  hops,  which  burnt  for  some  time  with  un- 
extinguishable  violence,  and  during  that  time  communicated  itself 
to  the  said  booth  in  which  the  defendant  had  deposited  the  hops,  and 
entirely  consumed  them  without  any  actual  negligence  in  the  defend- 
ant.   That  the  fire  was  not  occasioned  by  lightning." 

N.  Bond,  for  the  plaintiff.^ 

7  Ashhurst  and  Buller,  JJ.,  concurred  in  separate  opinions.  Willes,  J.,  also 
concurred. 

8  His  argument,  and  parts  of  the  argument  of  Borough  for  the  defendant, 
are  omitted. 


Ch.  1)  DAMAGE    OR   LOSS   IN    CARRIAGE   OF    GOODS.  319 

Borough,  for  the  defendant,  observed  that  the  point  in  this  case 
was  not  before  the  court  in  any  of  the  cases  cited.  The  general  ques- 
tion here  is,  whether  a  carrier  is  compellable  to  make  satisfaction  for 
goods  delivered  to  him  to  carry,  and  destroyed  by  mere  accident,  in 
a  case  where  negligence  is  so  far  from  being  imputed  to  him  that  it  is 
expressly  negatived?  This  action  of  assumpsit  must  be  considered 
as  an  action  founded  on  what  is  called  the  custom  of  the  realm  re- 
lating to  carriers.  And  from  a  review  of  all  the  cases  on  this  sub- 
ject it  manifestly  appears  that  a  carrier  is  only  liable  for  damage 
and  loss  occasioned  by  the  acts  or  negligence  of  himself  and  serv- 
ants, that  is,  for  such  damage  and  loss  only  as  human  care  or  fore- 
sight can  prevent;  and  that  there  is  no  implied  contract  between  him 
and  his  employers  to  indemnify  them  against  unavoidable  accidents. 
The  law  with  respect  to  land  carriers  and  water  carriers  is  the  same. 
Rich  V.  Kneeland,  Cro.  Jac.  330;   Hob.  17,  5  Burr.  2827. 

In  Vid.  27 :  The  declaration,  in  an  action  against  a  waterman  for 
negligently  keeping  his  goods,  states  the  custom  relative  to  carriers 
thus,  "absque  substractione,  amissione,  seu  spoliatione,  portare  ten- 
entur,  ita  quod  pro  defectu  dictorum  communium  portatorum  seu 
servientium  suorum,  hujusmodi  bona  et  catalla  eis  sic  ut  prefertur 
deliberata,  non  sint  perdita,  amissa,  seu  spoliata."  It  then  states  the 
breach,  that  the  defendant  had  not  delivered  them,  and  "pro  defectu 
bonse  custodiae  ipsius  defendentis  et  servientium  suorum  perdita  et 
amissa  fuerunt,"  In  Brownl.  Red.  12,  the  breach  in  a  declaration 
against  a  carrier  is,  "defendens  tam  negligenter  et  improvide  custodivit 
et  carriavit,"  etc.  In  Chft.  38,  39,  Mod.  Intr.  91,  92,  and  Heme,  76, 
the  entries  are  to  the  same  effect.  In  Rich  and  Kneeland,  Hob.  17, 
the  custom  is  stated  in  a  similar  way;  and  in  the  Exchequer  Cham- 
ber it  was  resolved,  "that  though  it  was  laid  as  a  custom  of  the  realm, 
yet  indeed  it  is  common  law."  On  considering  these  cases,  it  is  not 
true  that  "the  act  of  God  and  of  the  king's  enemies"  is  an  exception 
from  the  law.  For  an  exception  is  always  of  something  compre- 
hended within  the  rule,  and  therefore  excepted  out  of  it;  but  the  act 
of  God  and  of  the  king's  enemies  is  not  within  the  law  as  laid  down 
in  the  books  cited. 

All  the  authorities  cited  by  the  counsel  for  the  plaintiff  are  founded 
on  the  dictum  in  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  where  this  doc- 
trine was  first  laid  down;  but  Lord  Holt  did  not  mean  to  state  the 
proposition  in  the  sense  in  which  it  has  been  contended  he  did  state 
it.  He  did  not  intend  to  say,  that  cases  falling  within  the  reasoning  of 
what  are  vulgarly  called  "acts  of  God"  should  not  also  be  good  de- 
fences for  a  carrier.  [Counsel  then  quoted  from  the  opinion  of  Lord 
Holt,  ante,  p.  317.]  As  Lord  Holt  therefore  states  the  responsibility 
of  carriers  in  case  of  robbery  to  take  its  origin  from  a  ground  of  policy, 
he  could  not  mean  to  say  that  a  carrier  was  also  liable  in  cases  of  ac- 
cidents, where  neither  combination  nor  negligence  can  possibly  exist. 


320  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part    4 

It  appears  from  the  Doctor  and  Student  (Dial.  2,  c.  38,  p.  270)  that, 
at  the  time  that  book  was  written,  the  carrier  was  held  liable  for  rob- 
beries which  diligence  and  foresight  might  prevent.  *  *  *  j^  ^n 
the  cases  to  be  found  in  our  books,  may  be  traced  the  true  ground  of 
liability,  negligence.  If  the  law  were  not  as  is  now  contended  for,  the 
question  of  negligence  could  never  have  arisen;  and  the  case  of  rob- 
bery could  not  have  borne  any  argument ;  whereas  the  case  of  Morse 
V.  Slue,  1  Vent.  190,  238  [ante,  p.  313],  came  on  repeatedly  before  the 
court,  and  created  very  considerable  doubts.     *     *     * 

However,  if  the  court  should  be  of  opinion  that  the  carrier  is  an- 
swerable for  every  loss,  unless  occasioned  by  the  act  of  God  or  the 
king's  enemies,  he  then  contended  that,  as  the  act  of  God  was  a  good 
ground  of  defence,  this  accident,  though  not  within  the  words,  was 
within  the  reason,  of  that  ground.  It  cannot  be  said  that  misfortunes 
occasioned  by  lightning,  rain,  wind,  etc.,  are  the  immediate  acts  of 
the  Almighty ;  they  are  permitted,  but  not  directed  by  him.  The  rea- 
son why  these  accidents  are  not  held  to  charge  a  carrier,  is,  that  they 
are  not  vmder  the  control  of  the  contracting  party,  and  therefore  can- 
not affect  the  contract,  inasmuch  as  he  engages  only  against  those 
•events  which  by  possibility  he  may  prevent.     *     *     * 

It  is  expressly  found,  in  the  present  case,  that  the  fire  burnt  with 
unextinguishable  violence.  The  breaking  out  of  the  fire  was  an  event 
which  God  only  could  foresee.  And  the  course  it  would  take  was  as 
little  to  be  discovered  by  human  penetration. 

Bond,  in  reply.  There  are  several  strong  cases  where  there  could 
not  be  any  negligence.  It  is  not  sufficient  in  these  cases  to  negative 
any  negligence ;  for  everything  is  negligence  which  the  law  does  not 
excuse,  1  Wils.  282.  And  the  question  here  is,  is  this  a  case  which 
the  law  does  excuse?  In  Goffe  v.  Clinkard,  cited  in  Wils.  282,  there 
was  all  possible  care  on  the  part  of  the  defendants.  The  judgment 
in  the  case  of  Gibbon  v.  Peyton  and  another,  -1  Burr.  2298,  which  was 
an  action  against  a  stagecoachman  for  not  delivering  money  sent,  is 
extremely  strong.  There  Lord  Mansfield  said  (-1  Burr.  2300):  "A 
common  carrier,  in  respect  of  the  premium  he  is  to  receive,  runs  the 
risk  of  them,  and  must  make  good  the  loss,  though  it  happen  without 
any  fault  in  him;  the  reward  making  him  answerable  for  their  safe 
delivery." 

That  a  carrier  was  liable  in  the  case  of  a  robbery  was  first  held  in 
^  Ed.  IV,  pi.  40. 

A  bailee  only  engages  to  take  care  of  his  goods  as  his  own,  and  is 
not  answerable  for  a  robbery ;  but  a  carrier  insures.  1  Ventr.  190, 
238.     Sir  T.  Raym.  220,  s.  c.  1  Mod.  85.    *    *    * 

Lord  Mansfield.  There  is  a  nicety  of  distinction  between  the  act 
of  God  and  inevitable  necessity.  In  these  cases  actual  negligence  is 
not  necessary  to  support  the  action.     Cur.  adv.  vult. 

Afterward  Lord  Mansfield  delivered  the  unanimous  opinion  of 
the  court. 


Ch.  1)  DAMAGE    OR   LOSS   IN    CARRIAGE    OF   GOODS.  321 

After  stating  the  case — The  question  is,  whether  the  common  car- 
rier is  liable  in  this  case  of  fire?  It  appears  from  all  the  cases  for 
one  hundred  years  back,  that  there  are  events  for  which  the  carrier 
is  liable  independent  of  his  contract.  By  the  nature  of  his  contract, 
he  is  liable  for  all  due  care  and  diligence;  and  for  any  negligence 
he  is  suable  on  his  contract.  But  there  is  a  further  degree  of  re- 
sponsibility by  the  custom  of  the  realm — that  is,  by  the  common  law ; 
a  carrier  is  in  the  nature  of  an  insurer.  It  is  laid  down  that  he  is 
liable  for  every  accident,  except  by  the  act  of  God  or  the  king's  ene- 
mies. Now  what  is  the  act  of  God?  I  consider  it  to  mean  something 
in  opposition  to  the  act  of  man;  for  everything  is  the  act  of  God  that 
happens  by  his  permission;  everything  by  his  knowledge.  But  to 
prevent  litigation,  collusion,  and  the  necessity  of  going  into  circum- 
stances impossible  to  be  unravelled,  the  law  presumes  against  the  car- 
rier, unless  he  shows  it  was  done  by  the  king's  enemies,  or  by  such 
act  as  could  not  happen  by  the  intervention  of  man,  as  storms,  light- 
ning, and  tempests. 

If  an  armed  force  come  to  rob  the  carrier  of  the  goods,  he  is  liable; 
and  a  reason  is  given  in  the  books,  which  is  a  bad  one,  viz.,  that  he 
ought  to  have  a  sufficient  force  to  repel  it;  but  that  would  be  impos- 
sible in  some  cases,  as,  for  instance,  in  the  riots  in  the  year  1780.  The 
true  reason  is,  for  fear  it  may  give  room  for  collusion,  that  the  master 
may  contrive  to  be  robbed  on  purpose,  and  share  the  spoil. 

In  this  case,  it  does  not  appear  but  that  the  fire  arose  from  the  act 
of  some  man  or  other.  It  certainly  did  arise  from  some  act  of  man; 
for  it  is  expressly  stated  not  to  have  happened  by  lightning.  The 
carrier  therefore  in  this  case  is  liable,  inasmuch  as  he  is  liable  for  in- 
evitable accident. 

Judgment  for  the  plaintiff.^ 


BANK  OF  ORANGE  v.  BROWN. 

,     (Supreme  Court  of  Judicature  of  New  York,  1S29.    3  Wend.  158.) 

Demurrer  to  plea  in  abatement.  The  declaration  contains  nine 
counts.  The  first  count  states  that  the  defendants  were  the  owners 
of  a  certain  vessel  or  steamboat  called  the  Constellation,  whereof  R. 
G.  Cruttenden  was  master,  used  and  navigated  upon  the  Hudson 
river,  between  the  cities  of  New  York  and  Albany,  for  the  convey- 
ance and  transportation  of  goods  and  chattels  for  hire  and  reward, 
touching  on  her  passages  up  and  down  the  river  at  the  village  of  New- 
burgh,  for  the  landing  and  delivery  of   freight,  goods  and  chattels; 

9  For  the  history  of  the  rule  imposing  strict  liability  upon  a  common  car- 
rier, see  Professor  Beale,  11  Harv.  L.  R.  158.  Compare  Holmes,  The  Common 
Law,  pp.  180-205. 

Green  Cask. — 21 


322  EXCEPTIONAL   LIABILITY    OF   COMMON  CARRIER.  (Part    4 

that  the  plaintiffs,  to  wit,  the  president,  directors  and  company  of  the 
Bank  of  Orange  County,  on  the  loth  November,  1827,  at  the  city  of 
New  York,  caused  to  be  deHvered  to  the  captain  a  parcel  of  bank  notes 
of  the  value  of  $11,250,  to  be  safely  and  securely  carried  and  con- 
veyed in  the  said  vessel  or  steamboat  from  the  city  of  New  York  to 
the  village  of  Newburgh,  and  there  to  be  delivered  to  one  William 
Phillips,  for  certain  freight  and  reward ;  and  the  said  master  then  and 
there  took  and  received  the  same  for  the  purposes  aforesaid ;  and 
although  the  said  vessel  or  steamboat  on  the  same  day  safely  arrived 
at  Newburgh,  and  no  dangers  of  the  seas,  nor  the  act  of  God,  nor  the 
enemies  of  the  people,  etc.,  prevented  the  safe  carriage  of  the  said 
bank  notes,  yet  the  plaintiffs  averred  that  the  said  defendants,  or  their 
said  agent,  not  regarding  their  duty  in  that  behalf,  but  contriving,  etc., 
to  deceive  and  defraud  the  plaintiffs,  did  not  deliver  the  said  bank 
notes  to  the  said  William  Phillips,  but  so  negligently,  carelessly  and 
improperly  conducted  the  carriage  and  conveyance  thereof,  that  for 
want  of  due  care  in  the  defendants,  their  servants  and  agents,  the 
said  bank  notes  were  wholly  lost  to  the  plaintiff's.  The  second  count 
states  that  the  defendants  were  common  carriers  of  goods  and  chat- 
tels, according  to  the  custom  of  the  state,  and  that  the  bills  were  de- 
livered to  them  to  be  carried  from  New  York  to  Newburgh,  for  certain 
freight  and  reward ;  that  although  the  vessel  arrived,  the  bills  were 
not  delivered,  but  were  lost  for  the  want  of  due  care,  and  through  the 
negligent,  careless  and  improper  conduct  of  the  defendants,  their 
servants  and  agents.  The  third,  sixth  and  eighth  counts  are  substan- 
tially like  the  first,  and  the  fourth,  fifth  and  seventh  counts  are  like 
the  second  count.  The  ninth  count  is  in  trover.  To  the  ninth  count, 
the  defendants  pleaded  the  general  issue,  and  to  the  first  eight  counts 
they  put  in  a  plea  in  abatement,  that  on  the  day  in  the  said  several 
counts  of  the  declaration  mentioned,  54  other  persons  (naming  them), 
together  with  the  6  defendants,  were  joint  owners  and  proprietors  of 
the  vessel  or  steamboat  in  the  declaration  mentioned ;  and  that  if 
any  such  injury  happened  as  is  complained  of  in  the  said  several 
counts,  the  said  54  persons  are  jointly  liable  with  the  defendants  for 
the  same,  as  such  joint  owners  and  proprietors,  etc.  The  plaintiffs 
demurred  to  the  plea  in  abatement,  and  the  defendants  joined.    *    *    * 

Savage,  C.  J.^"  *  *  *  The  plaintiffs  have  demurred,  and  the 
question  presented  for  adjudication  is,  whether  it  is  necessary  to  join 
all  the  joint  owners  in  this  suit? 

It  is  not  denied,  that  in  an  action  against  joint  contractors  as  such, 
all  must  be  joined ;  and  if  the  action  be  brought  against  a  part  only, 
those  who  are  sued  may  plead  in  abatement  the  nonjoinder  of  the 
other  joint  contractors.  Nor  is  it  denied  that,  in  an  action  for  a  tort, 
the  plaintiff  may  prosecute  all  or  any  portion  of  those  concerned  in 
such  tort.     But  an  action  on  the  case  against  common  carriers,  upon 

10  Part  of  the  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Ch.  1)  DAMAGE    OR    LOSS   IN    CARRIAGE    OF    GOODS.  323 

the  custom  of  the  realm,  seems  in  England  not  to  be  considered  al- 
ways as  belonging  entirely  to  the  class  of  actions  arising  ex  contractu, 
nor  to  those  arising  ex  delicto,  but  is  said  sometimes  to  be  a  case  aris- 
ing ex  delicto  quasi  ex  contractu. 

Every  person  who  undertakes  to  carry,  for  a  compensation,  the 
goods  of  all  persons  indifferently,  is,  as  to  the  liability  imposed,  to  be 
considered  a  common  carrier.  There  is  an  implied  undertaking  on 
his  part  to  carry  the  goods  safely,  and  on  the  part  of  the  owner  to 
pay  a  reasonable  compensation.  No  special  agreement  is  necessary 
to  enable  the  owner  to  maintain  assumpsit  against  the  carrier  for 
breach  of  his  duty,  nor  to  enable  the  carrier  to  maintain  assumpsit 
for  his  compensation.  There  is,  therefore,  a  perfect  contract  implied 
between  the  carrier  and  his  employer.  As  this  contract  is  implied  by 
law,  so  also  where  any  person  becomes  a  common  carrier  by  profess- 
ing to  carry  for  all  persons  indifferently,  the  law  imposes  upon  him 
duties  and  liabilities  arising  out  of  his  public  employment,  and  imposes 
upon  the  employer  the  liability  of  making  compensation.  Considerations 
of  public  policy,  and  not  agreements  between  the  parties,  have  ascer- 
tained the  duties  and  fixed  the  limits  of  the  liability  of  common  car- 
riers ;  and  for  any  omission  or  neglect  of  duty,  an  action  lies  without 
stating  any  consideration  of  contract  between  the  parties ;  for  the  neg- 
ligence is  the  cause  of  the  action,  and  it  is  not  necessary  to  state  or  rely 
upon  an  assumpsit.     *     *     * 

The  form  of  action  against  a  common  carrier,  is  a  question  which 
has  been  considerably  agitated  in  the  English  courts,  and  has  been  dif- 
ferent as  the  gravamen  was  supposed  to  arise  upon  a  breach  of  public 
duty,  or  the  breach  of  mere  express  promise.  Each  form  has  its  ad- 
vantages and  disadvantages.  If  assumpsit  is  brought,  or  the  action 
be  laid  as  arising  upon  contract,  it  may  be  abated  for  the  nonjoinder 
of  proper  parties ;  but  it  survives  against  the  personal  representative, 
and  the  common  counts  may  be  joined  in  the  declaration.  If  the  ac- 
tion be  laid  as  arising  ex  delicto,  and  founded  on  the  custom,  the  suit 
does  not  abate  for  the  non-joinder  of  all  the  proper  parties ;  and  in  a 
proper  case,  a  count  in  trover  may  be  joined.  "The  present  usage," 
says  ]\Ir.  Jeremy,  in  his  Law  of  Carriers,  p.  117,  "sanctions  the  prin- 
ciples and  adopts  the  advantages  of  both  forms  of  action,  by  permit- 
ting the  cases  to  be  considered  either  way,  as  arising  ex  contractu  or 
ex  delicto,  according  as  the  neglect  of  duty  or  breach  of  mere  express 
promise  is  meant  to  be  relied  upon  as  the  cause  of  injury."  Mr.  Chitty 
supposes  the  plaintiff  has  his  choice  of  remedy  (1  Chitty's  PI.  75,  6), 
and  that  in  an  action  founded  upon  the  custom,  no  advantage  can  be 
taken  of  the  nonjoinder  of  defendants,  and  refers  to  the  cases  which 
were  cited  upon  the  argument.  He  has  given  precedents  of  declara- 
tions both  ways  (2  Chitty,  117  and  271,  2)  ;  according  to  which,  the 
declaration  in  this  case  is  clearly  founded  upon  the  negligence  of  the 
defendants,  and  not  upon  an  express  promise. 

[The  learned  judge  then  reviewed  several  English  cases.] 


324  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part    4 

The  case  of  Bretherton  v.  Wood  (1821)  3  Brod.  &  Bing.  54, 
was  a  writ  of  error  in  the  Exchequer  Chamber,  Wood,  the  plaintiff 
below,  sued  ten  defendants,  as  proprietors  of  a  stage  coach,  for  in- 
juries he  had  received  by  being  upset  by  careless  driving,  while  he 
(the  plaintiff)  was  a  passenger.  At  the  trial,  the  jury  found  two  of 
the  defendants  not  guilty,  and  a  verdict  against  the  others,  on  which 
the  king's  bench  rendered  judgment;  and  for  this  cause  error  was 
brought  into  the  Exchequer  Chamber.  On  the  argument,  all  the  pre- 
ceding cases,  and  some  others,  were  cited.  Dallas,  Chief  Justice  of 
the  Common  Pleas,  delivered  the  judgment  of  the  court.  He  said  it 
had  been  contended  that  the  declaration  was  upon  contract,  and  he 
admitted,  if  it  were  so,  all  the  joint  contractors  must  be  made  defend- 
ants; but  the  court  thought  that  rule  applicable  to  cases  where  it  was 
necessary  to  shew  a  contract  on  trial.  ''This  action  is  on  the  case 
against  a  common  carrier  upon  whom  a  duty  is  imposed  by  the  custom 
of  the  realm,  or,  in  other  words,  by  the  common  law."  "A  breach  of 
this  duty  is  a  breach  of  the  law ;  and  for  this  breach,  an  action  lies 
founded  on  the  common  law,  which  action  wants  not  the  aid  of  a  con- 
tract to  support  it."  The  action  of  assumpsit,  he  admits,  would  lie ; 
but  it  was  of  recent  use  to  an  action  on  the  case,  which  was  as  old 
as  the  law  itself.  He  considered  this  action  as  founded  on  a  breach  of 
duty  depending  on  the  common  law,  on  a  tort  or  misfeasance ;  and 
was  therefore  several  as  well  as  joint.  He  considered  the  cases  of 
Powell  V.  Layton  (1806)  5  Bos.  &  Pul.  365,  and  Max  v.  Roberts 
(1810)  12  East,  89,  as  founded  upon  a  particular  contract,  and  there- 
fore not  in  the  way.  He  concludes  by  saying:  "At  present  it  is 
sufficient  to  say  that  this  action  is  founded  on  a  misfeasance,  and  that 
the  declaration  is  framed  accordingly ;  and  therefore  that  the  verdict 
and  judgment  given  against  some  of  the  defendants  is  not  erroneous, 
and  ought  to  be  affirmed." 

These  are  all  the  cases  necessary  to  be  noticed ;  and  I  hope  this  short 
review  of  them  may  elucidate  the  subject. 

It  is  not  to  be  denied  that  there  has  been  a  dift'erence  of  opinion  be- 
tween some  of  the  English  judges  on  the  question  whether  an  action 
against  a  common  carrier  is  an  action  founded  on  a  tort  or  on  a  con- 
tract. Dallas,  Chief  Justice,  seems  to  put  that  question  at  rest,  by 
bringing  it  to  a  very  fair  test:  Does  it  require  the  plaintiff  to  shew 
a  contract,  express  or  implied,  to  support  it?  The  action  on  the  case 
was  at  last  decided  to  be  for  a  tort  or  misfeasance.  This  was  clearly 
the  opinion  of  Lord  Mansfield  in  the  case  cited  by  Chief  Justice  INIans- 
field;  and  all  the  cases  in  which  it  has  been  held  necessary  to  join  all 
the  joint  owners  have  been  said  by  distinguished  judges  to  be  clearly 
actions  upon  a  promise.  Much  of  the  confusion  has  probably  grown 
out  of  the  forms  of  declaring  in  some  of  the  cases,  where  it  is  diffi- 
cult to  determine  whether  the  promise  and  undertaking  often  stated  in 
the  count,  or  the  custom  of  the  realm,  also  stated,  is  intended  by  the 
pleader  to  be  the  foundation  of  the  action. 


Ch,    1)  DAMAGE    OR   LOSS   IN    CARRIAGE    OF   GOODS.  325 

I  apprehend  the  true  rule  now  is  that  an  action  solely  upon  the 
custom  is  an  action  of  tort;  that  in  such  action  all  or  any  number  of 
the  owners  of  a  vessel,  coach,  or  any  kind  of  conveyance  used  by  com- 
mon carriers,  may  be  sued,  and  judgment  may  be  rendered  on  a  ver- 
dict against  all  or  a  part  only  of  those  against  whom  the  action  is 
brought;  the  plaintiff  has  his  choice  of  remedies,  either  to  bring  as- 
sumpsit or  case;  and  that  when  one  or  the  other  action  is  adopted,  it 
must  be  governed  by  its  own  rules.  But  if  the  plaintiff  states  the 
custom,  and  also  relies  on  an  undertaking  general  or  special,  as  in 
Boson  V.  Sandford,  2  Show.  478,  and  some  others,  then  the  action 
may  be  said  to  be  ex  delicto  quasi  ex  contractu,  but  in  reality  is 
founded  on  the  contract,  and  to  be  treated  as  such. 

In  Allen  v.  Sewall,  2  Wend.  338,  in  giving  the  opinion  of  the  court, 
I  remarked  that  all  the  copartners  should  have  been  sued,  as  the  action 
was  quasi  ex  contractu.  It  was  unnecessary  in  that  case  to  say  any 
thing  on  that  point,  as  no  plea  in  abatement  had  been  pleaded ;  and 
upon  further  examination,  I  am  satisfied  the  remark  is  incorrect,  for 
the  reasons  above  assigned. 

It  is  certainly  now  settled  in  England,  that  an  action  against  a 
common  carrier  upon  the  custom,  is  founded  on  a  breach  of  duty ;  that 
it  is  a  tort  or  misfeasance;  and  it  follows  that  it  is  joint  or  several. 

In  the  case  now  under  consideration,  all  the  counts  are  substan- 
tially upon  the  custom  and  in  case,  though  some  of  them  contain  ex- 
pressions similar  to  those  used  in  actions  of  assumpsit;  but  there  is 
none  of  them  which  relies  upon  any  undertaking  of  the  defendants, 
and  they  all  state  the  gravamen  to  be  a  breach  of  duty. 

I  am,  therefore,  of  opinion,  that  an  action  on  the  case  against  a 
common  carrier  belongs  to  the  class  of  actions  arising  upon  a  tort  or 
misfeasance  ex  delicto;  and  that  such  actions,  being  ^s  well  several  as 
joint,  it  is  unnecessary  to  join  all  the  joint  tort  feasors.  The  demurrer 
is  well  taken,  and  the  plaintiff  is  entitled  to  judgment  of  respondeas 
ouster. 

Justices  Sutherland  and  Marcy  did  not  hear  the  argument  of  this 
case,  and  gave  no  opinion.^ ^ 

II  For  the  early  conception  of  the  duty  attached  to  the  exercise  of  a  public 
employment,  see  Professor  Beale,  The  Carrier's  Liability,  Its  History,  11 
Harvard  Law  Review,  158,  163.  For  the  significance  of  the  assumpsit  in  a 
declaration  in  tort,  see  Professor  Ames,  The  History  of  Assumpsit,  2  Harvard 
Law  Review,  1,  3^.  For  an  example  of  a  declaration  upon  the  custom  of  the 
realm  against  a  common  carrier,  see  Chamberlain  v.  Cooke,  2  Vent.  75  (1G89). 


326  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

CHAPTER  II 
LIABILITY  FOR  INJURY  TO  PASSENGERS 


ASTON  V.  HEAVEN. 

(Court  of  Comuiou  Pleas,  179G.    2  Esp.  533.) 

Case  against  the  defendants  as  proprietors  of  the  Sahsbury  stage- 
coach, for  neghgence  in  the  driving  of  the  said  coach ;  in  consequence 
of  which  the  coach  was  overset,  and  the  plaintiff  much  bruised  and 
her  finger  broke.  The  plaintiff  proved  the  oversetting  of  the  coach, 
and  the  accident  having  happened  from  the  oversetting  of  the  coach, 
she  being  an  outside  passenger.     *     *     * 

Eyre,  C.  J.*  This  action  is  founded  entirely  in  negligence.  It  has 
been  said  by  the  counsel  for  the  plaintiff,  that  whenever  a  case  hap- 
pens, even  where  there  has  been  no  negligence,  he  would  take  the 
opinion  of  the  court,  whether  defendants  circumstanced  as  the  pres- 
ent, that  is,  coach  owners,  should  be  liable  in  all  cases,  except  where 
the  injury  happens  from  the  act  of  God  or  of  the  king's  enemies.  I  am 
of  opinion  the  cases  of  the  loss  of  goods  by  carriers  and  the  present 
are  totally  unlike.  When  that  case  does  occur,  he  will  be  told  that 
carriers  of  goods  are  liable  by  the  custom  to  guard  against  frauds 
they  might  be  tempted  to  commit  by  taking  goods  intrusted  to  them 
to  carry,  and  then  pretending  they  had  lost  or  been  robbed  of  them ; 
and  because  they  can  protect  themselves ;  but  there  is  no  such  rule  in 
the  case  of  the  carriage  of  persons.  This  action  stands  on  the  ground 
of  negligence  only.     *     *     * 

The  immediate  cause  of  the  accident  is  agreed  on  all  hands.  The 
question  therefore  depends  on  the  consideration  of  whether  there  was 
any  negligence  in  the  driver.  It  is  said  he  was  driving  wnth  reins  so 
loose,  that  he  could  not  readily  command  his  horses.  If  that  was  the 
case,  the  defendants  are  liable ;  for  a  driver  is  answerable  for  the 
smallest  negligence.  But  if  this  does  not  appear,  and  the  accident  ap- 
pears to  have  arisen  from  any  unforeseen  accident  or  misfortune,  as 
from  the  horses  suddenly  taking  fright;  in  such  case  the  defendants 
are  not  liable.  It  is  for  the  jury  to  say  whether  it  proceeded  from 
that  cause  or  not. 

The  jury  found  a  verdict  for  the  defendants. 

*  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


Ch.  2)  LIABILITY    FOR   INJURY   TO   PASSENGERS-  327 

CHRISTIE  V.  GRIGGS. 

(Nisi  Prius,  1809.    2  Campbell,  79.) 

This  was  an  action  of  assumpsit  against  the  defendant  as  owner  of 
the  Blackwall  stage,  on  which  the  plaintiff,  a  pilot,  was  traveling  to 
London,  when  it  broke  down,  and  he  was  greatly  bruised.  The  first 
count  imputed  the  accident  to  the  negligence  of  the  driver ;  the  second, 
to  the  insufficiency  of  the  carriage. 

The  plaintiff  having  proved  that  the  axletree  snapped  asunder  at 
a  place  where  there  is  a  slight  descent,  from  the  kennel  crossing  the 
road ;  that  he  was,  in  consequence,  precipitated  from  the  top  of  the 
coach;  and  that  the  bruises  he  received  confined  him  several  weeks 
to  his  bed — there  rested  his  case. 

Best,  Sergeant,  contended  strenuously  that  the  plaintiff'  was  bound 
to  proceed  farther,  and  give  evidence,  either  of  the  driver  being  un- 
skillful, or  of  the  coach  being  insufficient. 

Sir  James  Mansfield,  C.  J.  I  think  the  plaintiff  has  made  a  prima 
facie  case  by  proving  his  going  on  the  coach,  the  accident,  and  the 
damage  he  has  suffered.  It  now  lies  on  the  other  side  to  show  that 
the  coach  was  as  good  a  coach  as  could  be  made,  and  that  the  driver 
was  as  skillful  a  driver  as  could  anywhere  be  found.  What  other  evi- 
dence can  the  plaintiff  give?  The  passengers  were  probably  all  sail- 
ors like  himself ;  and  how  do  they  know  whether  the  coach  was  well 
built,  or  whether  the  coachman  drove  skillfully?  In  many  other  cases 
of  this  sort  it  must  be  equally  impossible  for  the  plaintiff  to  give  the 
evidence  required.  But  when  the  breaking  down  or  overturning  of 
the  coach  is  proved,  negligence  on  the  part  of  the  owner  is  implied. 
He  has  always  the  means  to  rebut  this  presumption,  if  it  be  un- 
founded ;  and  it  is  now  incumbent  on  the  defendant  to  make  out,  that 
the  damage  in  this  case  arose  from  what  the  law  considers  a  mere  ac- 
cident. 

The  defendant  then  called  several  witnesses,  who  swore  that  the 
axletree  had  been  examined  a  few  days  before  it  broke  without  any 
flaw  being  discovered  in  it ;  and  that  when  the  accident  happened,  the 
coachman,  a  very  skillful  driver,  was  driving  in  the  usual  track  and 
at  a  moderate  pace. 

Sir  James  AIansfield  said,  as  the  driver  had  been  cleared  of  every- 
thing like  negligence,  the  question  for  the  jury  would  be — as  to  the 
sufficiency  of  the  coach.  If  the  axletree  was  sound  as  far  as  human 
eye  could  discover,  the  defendant  was  not  liable.  There  was  a  dif- 
ference between  a  contract  to  carry  goods,  and  a  contract  to  carry  pas- 
seno-ers.  For  the  goods  the  carrier  was  answerable  at  all  events.  But 
he  did  not  warrant  the  safety  of  the  passengers.  His  undertaking  as 
to  them  went  no  farther  than  this,  that  as  far  as  human  care  and  fore- 
sight could  go,  he  would  provide  for  their  safe  conveyance.    Therefore 


328  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

if  the  breaking  clown  of  the  coach  was  purely  accidental,  the  plaintiff 
had  no  remedy  for  the  misfortune  he  had  encountered. 
The  jury  found  a  verdict  for  the  defendant.^ 


LOUISIANA  &  N.  W.  R.  CO.  v.  CRUMPLER. 

(Circuit  Court  of  Appeals,  Eiglith  Circuit,  1903.    122  Fetl.  425,  59  C.  C.  A.  51.) 

Thayer,  Circuit  Judge. ^  This  is  an  action  which  was  brought  by 
J.  F.  Crumpler  against  the  Louisiana  &  Northwest  Railroad  Company 
to  recover  damages  which  the  plaintiff  below  sustained  in  consequence 
of  the  derailment  of  one  of  the  defendant  company's  trains  on  which 
the  plaintiff  was  riding  as  a  passenger.  *  *  *  'phe  evidence  in 
the  lower  court  is  not  set  out  in  full  in  the  record,  but  it  is  conceded 
that  it  tended  to  show  that  the  derailment  of  the  train  was  caused  by 
the  bad  condition  of  the  roadbed  at  the  place  where  the  cars  left  the 
track ;  that  many  of  the  ties  at  that  place  were  rotten ;  and  that  many 
of  the  spikes  that  fastened  the  rails  to  the  ties  were  loose.  It  is  like- 
wise conceded  that  there  was  testimony  to  the  contrary,  which  tended 
to  show  that  the  track  where  the  derailment  occurred  was  in  a  reason- 
ably safe  condition,  and  that  the  derailment  might  have  been  occa- 
sioned by  reason  of  the  fact  that  the  trucks  of  one  of  the  cars  were 
new  or  stiff,  being  very  little  worn,  and  that  this  car  first  left  the  track 
as  the  train  was  moving  around  a  curve  and  was  approaching  a  trestle. 

At  the  conclusion  of  the  testimony  the  court  charged  the  jury  to  the 
following  effect :  That  while  the  duty  rested  upon  the  defendant 
company,  as  a  carrier  of  passengers,  to  exercise  the  highest  practical 
care  to  provide  a  safe  roadbed,  sound  ties,  and  strong  rails  securely 
laid,  and  safe  cars  wherewith  to  transport  the  plaintiff,  and  that  if  it 
was  guilty  of  negligence  in  any  one  or  in  all  of  these  particulars  the 
plaintiff  might  recover,  provided  the  injury  of  which  he  complained 
was  the  direct  result  of  one  of  such  acts  of  negligence,  yet  that  the 
duty  resting  upon  the  defendant  as  a  carrier  of  passengers  did  not 
compel  it  to  exercise  all  the  care  and  diligence  the  human  mind  could 
conceive  of,  nor  such  care  as  would  render  the  transportation  of  pas- 
sengers free  from  any  possible  danger  to  them,  nor  such  as  would 
drive  the  carrier  out  of  business ;  that  the  carrier,  for  instance,  was 
not  required  to  lay  iron  or  granite  cross-ties  simply  because  such  ties 
were  less  liable  to  decay,  and  hence  safer  than  wood;  that  it  was  re- 
quired to  exercise  the  highest  degree  of  practical  care,  diligence,  and 
skill,  but  that  there  were  some  casualties  which  human  sagacity  could 

lAce.  Stokes  v.  Saltonstall,  13  Pet.  ISl,  10  L.  Ed.  115  (18.39);  Ingalls  v. 
Bills,  9  Mete.  (Mass.)  1,  43  Am.  Dec.  34G  (1845);  Bush  v.  Barnett,  96  Cal.  202, 
31  Pac.  2  (1892). 

2  Parts  of  the  opinion  are  omitted. 


Ch.  2)  LIABILITY   FOR   INJURY   TO   PASSENGERS.  329' 

not  guard  against  and  foresee,  and  that  every  passenger  must  make  up 
his  mind  to  meet  the  risks  incident  to  the  mode  of  travel  which  he 
adopts,  that  cannot  be  avoided  by  the  highest  degree  of  care  and  skill 
in  the  preparation  and  management  of  the  means  of  conveyance,  and 
to  submit  to  the  privations  and  restraints  and  conform  to  the  provi- 
sions which  might  be  made  and  enforced  for  his  safety  and  protec- 
tion. It  further  charged  the  jury  that  when  a  train  of  cars  on  which 
a  person  is  riding  leaves  the  track,  or  is  derailed,  such  an  occurrence 
creates  a  presumption  that  the  carrier  has  been  in  some  respect  negli- 
gent, and  entitles  the  passenger  to  recover  for  such  injuries  as  he  may 
have  sustained  in  consequence  of  the  derailment,  unless  the  presump- 
tion of  negligence  is  overcome  by  proof  to  the  contrary  introduced  by 
the  carrier.  After  giving  these  general  directions,  the  trial  judge  in- 
structed the  jury  that  the  question  whether  the  defendant  company 
had  been  guilty  of  culpable  negligence  as  charged  by  the  plaintiff  was 
a  question  of  fact,  which  the  jury  must  determine  in  the  light  of  all 
the  evidence  in  the  case. 

The  defendant  company  took  no  exception  to  the  aforesaid  charge 
except  to  the  paragraph  which  declared  that  the  duty  rested  upon  it 
to  exercise  the  highest  degree  of  practical  care  to  provide  a  safe  road- 
bed, sound  cross-ties,  and  safe  cars  to  transport  the  plaintiff,  and  that 
if  the  defendant  was  negligent  in  either  of  these  respects,  and  the 
plaintiff  was  injured  in  consequence  thereof,  he  might  recover.  This 
exception  is  not  argued  in  this  court,  nor  could  the  principle  of  law 
announced  be  seriously  challenged,  since  the  same  doctrine  was  enun- 
ciated in  Indianapolis,  etc..  Railroad  Co.  v.  Horst,  93  U.  S.  291,  296, 
297,  23  L.  Ed.  898,  from  which  the  charge  of  the  trial  court  seems  to 
have  been  compiled. 

The  defendant  company  complains  principally  because  the  trial 
judge  declined  to  give  two  instructions  that  were  asked  in  its  behalf. 
*  *  *  The  first  of  these  instructions  stated  a  mere  truism,  namely, 
that  if  the  track,  at  the  time  of  the  derailment,  was  in  good  condition,, 
then  there  could  be  no  finding  against  the  defendant  on  account  of  a 
defective  track.  The  other  instruction,  to  the  effect  that  if  the  derail- 
ment was  occasioned  by  some  defect  in  one  of  the  trucks,  which  could 
not  have  been  discovered  by  the  exercise  "of  the  utmost  care,  skill, 
and  diligence,"  then  the  defendant  was  not  liable,  was  a  direction 
which  was  practically  given  by  the  court  as  heretofore  shown.  In 
other  words,  the  jurors  were  instructed  that  the  defendant  company 
could  not  be  held  accountable  for  a  derailment  that  was  occasioned  by 
a  defect  either  in  the  track  or  car,  against  which  the  defendant  could 
not  have  guarded  by  the  exercise  of  the  utmost  care,  skill,  and  dili- 
gence. We  think  that  the  case  was  submitted  to  the  jury  under  in- 
structions as  to  the  law  that  were  substantially  correct,  and  that  no 
occasion  exists  for  granting  a  new  trial.  It  is  highly  probable  that 
the  jury  were  of  opinion  that  the  defendant  company  had  not  sue- 


330  EXCEPTIONAL  LIABILITY  OF  COMMON  CARRIER.  (Part    4 

ceeded  in  overcoming  the  presumption  of  negligence  which  was  raised 
by  the  fact  that  while  the  train  was  moving  at  a  usual  rate  of  speed  it 
left  the  track  and  rolled  down  an  embankment. 
The  judgment  below  is  accordingly  affirmed.' 

3  In  Dodge  v.  Boston  &  Bangor  S.  S.  Co.,  14S  Mass.  207,  10  N.  E.  373,  2 
L.  R.  A.  S3.  12  Am.  St.  Rep.  541  (18S9).  printed  on  another  point,  post,  p.  ,->17, 
Knowlton,  J.,  said:  "Because  a  passenger's  life  and  safety  are  necessarily 
intrusted  in  a  great  degree  to  the  care  of  the  carrier  who  transports  him, 
the  law  deems  it  reasonable  that  the  carrier  should  be  bound  to  exercise  the 
utmost  care  and  diligence  in  providing  against  those  injuries  which  human 
care  and  foresight  can  guard  against.  This  rule  is  held  not  only  in  our  own 
state  and  in  England,  but  all  over  the  United  States.  It  applies  not  only 
to  carriers  who  use  steam  railroads,  but  to  those  who  use  horse  railroads, 
stagecoaches,  steamboats,  and  sailing  vessels.  It  applies  at  all  times  when, 
and  in  all  places  where,  the  parties  are  in  the  relation  to  each  other  of  pas- 
senger and  carrier ;  and  it  includes  attention  to  all  matters  which  i>ertain 
to  the  business  of  carrying  the  passenger.  *  *  *  Difficulty  iu  the  appli- 
cation of  this  rule  has  sometimes  come  from  an  improper  interpretation  of 
the  expressions  'utmost  care  and  diligence.'  'most  exact  care,'  and  the  like. 
These  do  not  mean  the  utmost  care  and  diligence  which  men  are  capable  of 
exercising.  Tliey  mean  the  utmost  care  consistent  with  the  nature  of  the 
carrier's  undertaking,  and  with  a  due  regard  for  all  the  other  matters  which 
ought  to  be  considered  in  conducting  the  business.  Among  these  are  the  speed 
which  is  desirable,  the  prices  which  passengers  can  afford  to  pay.  the  nec- 
essary cost  of  different  devices  and  provisions  for  safety,  and  the  relative  risk 
of  injury  from  different  possible  causes  of  it.  With  this  interpretation  of  the 
rule,  the  application  of  it  is  easy.  As  applied  to  every  detail,  the  rule  is  the 
same.  The  degree  of  care  to  be  used  is  the  highest ;  that  is,  in  reference  to 
each  particular  it  is  the  highest  which  can  be  exercised  in  that  particular  with 
a  reasonable  resard  to  the  business  in  all  other  particulars." 

In  Steele  v.  Southern  Ry.  Co.,  55  S.  C.  380,  33  S.  E.  500,  74  Am.  St.  Rep. 
7.5G  (1890),  the  plaintiff,  a  passenger  on  a  freight  train  riding  in  the  caboose, 
was  injured  in  a  collision  between  the  sections  of  the  train  which  had  become 
uncoupled  while  running.  A  judgment  in  his  favor  was  reversed  for  the 
court's  refusal  to  tell  the  jury  that  in  considering  whether  the  carrier  was 
negligent  they  should  take  into  account  the  difference  between  the  opera- 
tion of  a  freight  and  of  a  passenger  train.  Jones,  J.,  for  the  court,  said: 
"Whatever  the  mode  of  conveyance,  whether  by  jiassenger,  mixed,  or  freight 
train,  the  carrier  is  liable  for  any  negligence  resulting  in  injury  to  a  passenger, 
and  in  that  sense  the  law  requires  the  highest  degree  of  care  in  all  cases ;  but 
in  applying  this  rule  the  jury  should  take  notice  of  the  particular  mode  of 
conveyance.  For  illustration,  in  the  management  of  a  regular  passenger  train 
the  highest  degree  of  care  may  require  the  use  of  a  bell  cord  or  a  brakeman  on 
each  car.  or  automatic  brakes;  but  in  the  management  of  a  fi*eight  train  the 
same  degree  of  care  may  not  require  all  these  things.  To  require  of  freight 
trains  all  the  safeguards  against  danger  which  is  required  of  a  passenger 
train  might  render  the  operation  of  freight  trains  impracticable  in  many  local- 
ities.   These  views  are  supported  by  the  authorities." 

It  has  been  held  to  be  reversible  error  to  instruct  a  jury  as  to  the  care 
owed  by  a  common  carrier  to  its  passengers  in  terms  properly  used  in  stating 
the  care  owed  in  ordinary  relations.  Spellman  v.  Lincoln  R.  T.  Co..  30  Neb. 
890.  55  N.  W.  270,  20  E.  R.  A.  316,  38  Am.  St.  Rep.  753  (189,3):  Lewis  v. 
Houston  Electric  Co..  30  Tex.  Civ.  App.  625.  88  S.  W.  480  (1905).  Contra: 
Pomroy  v.  Bangor  Co..  102  Me.  407.  67  Atl.  .561  (1907).  And  see  Ferguson  v. 
Truax,  136  Wis.  637,  643.  118  N.  W.  251  (1908).  On  the  other  hand,  it  has 
been  held  that  an  instruction  that  the  carrier  owes  the  highest  care  sets 
the  standard  too  high.  Denham  v.  Washington  Water  Power  Co.,  38  Wash. 
3.54.  80  Pae.  546  (1905) ;  Tri-City  Ry.  Co.  v.  Gould,  217  111.  317,  75  N.  E.  493 
(1905). 

A  passenger  is  not  held  to  a  peculiarly  high  degree  of  care.  If  he  exercises 
the  care  of  a  prudent  man,  he  is  not  guilty  of  contributory  negligence.    South- 


Ch.   2)  LIABILITY    FOR   INJURY   TO    PASSENGERS.  331 

BOSWORTH  V.  UNION  R.  CO. 
(Supreme  Court  of  Rhode  Island,  1903.     2T^  R.  I.  202,  5.5  Atl.  490.) 

Dubois,  J.  This  is  an  action  of  trespass  on  the  case  for  negligence. 
In  the  second  coimt  of  his  declaration  the  plaintiff  alleges  that  it  was 
the  di;ty  of  the  defendant  to  exercise  the  utmost  vigilance  and  care  in 
guarding  and  protecting  him,  as  and  while  a  passenger,  against  vio- 
lence and  risk  of  injury;  and  that  the  defendant  was  negligent  in  not 
exercising  proper  and  adequate  care  and  vigilance  in  guarding  and 
protecting  him,  while  he  was  its  passenger,  against  mob  violence,  and  in 
attempting  to  run  its  car  through  a  mob  without  warning  the  plaintiff 
of  the  dangers  to  which  he  was  being  exposed  thereby,  in  consequence 
of  which  he  sustained  the  injury,  complained  of.  The  defendant  de- 
murs to  such  statement  of  its  duty. 

We  have  heretofore,  in  Boss  v.  Prov.  &  Wor.  R.  R.  Co..  15  R.  I. 
149,  1  Atl.  9,  thus  stated  the  law :  "In  regard  to  the  degree  of  care 
which  the  law  imposes  upon  common  carriers  of  passengers,  it  is  set- 
tled by  a  long  and  uninterrupted  line  of  adjudication  that  they  are 
bound  to  exercise  the  utmost  care  and  skill  which  prudent  men  would 
use  under  similar  circumstances;  and  they  are  liable  for  injuries  re- 
sulting from  even  the  slightest  negligence  on  the  part  of  themselves 
or  their  servants."  And  later,  in  Elliott  v.  Newport  St.  Ry.  Co.,  18 
R.  I.  ror,  28  Atl.  338,  31  Atl.  694,  23  L.  R.  A.  208.  as  follows:  "Com- 
mon carriers  of  passengers  are  required  to  do  all  that  human  care, 
vigilance,  and  foresight  reasonably  can,  in  view  of  the  character  and 
mode  of  conveyance  adopted,  to  prevent  accident  to  passengers." 

The  defendant,  though  not  denying  the  foregoing  to  be  the  general 
rule  applicable  to  common  carriers  of  passengers,  claims  that  it  par- 
ticularly applies  to  its  running  appliances,  for  the  reason  that  defects 
therein  are  likely  to  occasion  accidents  resulting  in  great  injury  and 
loss  of  life  to  passengers ;  and  also  calls  our  attention  to  another  rule, 
relating  to  its  approaches  to  trains,  concerning  which  it  is  bound  to  use 
only  ordinary  care. 

We  recognize  the  distinction  in  the  law  between  the  degree  of  care 
to  be  used  in  its  stationary  and  in  its  locomotive  appliances.  The  more 
stringent  rule  is  established  for  the  protection  of  passengers  while  in 
transit.  During  their  passage  they  are  to  be  guarded  not  only  against 
accidents  resulting  from  defects  in  the  running  appliances,  but  also 

ern  Rv.  Co.  v.  Cunninchani.  123  Ga.  90.  .-,0  S.  E.  979  (190.5) ;    Chicago,  etc.,  R. 
Co.  V.' Trover.  70  Neb.  293.  103  N.  W.  (ISO  (190.5). 

Seef  further,  as  to  the  standard  of  care.  Tnller  v.  Talbot.  23  111.  357,  76 
Am.  Dec.  695  (1860);  Indianapolis  &  St.  Louis  R.  R.  Co.  v.  Horst.  93  U.  S.  291, 
23  L.  Ed.  898  (1876);  Pershing  v.  Chicago,  etc.,  R.  Co.,  71  Iowa.  561,  32  N.  W. 
488  (1887);  Williams  v.  Spokane  Falls  &  No.  Ry.  Co.,  39  Wash.  77,  SO  Pac.  1100 
(1905)  •  Hutcheis  v.  Cedar  Rapids,  etc..  Ry.  Co.,  128  Iowa.  279,  103  N.  W.  779 
(1905);  Kirkpatrick  v.  Met.  St.  Ry.  Co.,  211  Mo.  68,  109  S.  W.  682  (1908); 
Readhead  v.  Railway  Co.,  L.  R.  4  Q.  B.  379  (1869). 


332  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

from  dangers  arising  out  of  the  recklessness  or  carelessness  of  the 
servants  of  the  common  carrier.  With  the  best  appliances  it  would  be 
possible  for  a  careless  or  reckless  servant  to  propel  a  car  into  danger ;, 
as,  for  instance,  into  an  open  draw  on  a  bridge,  into  a  blazing  station,. 
or  into  a  drove  of  infuriated  cattle. 

In  approaching  any  place  of  danger  it  is  the  duty  of  the  common 
carrier  of  passengers  and  its  servants  to  exercise  the  utmost  care, 
caution,  vigilance,  and  skill  which  prudent  men  would  use  under  like 
circumstances.  Whether  the  servants  and  agents  of  the  defendant 
did  exercise  that  degree  of  care  and  skill  at  the  time  and  place  al- 
leged by  the  plaintiff  is  a  question  of  fact,  which  must  be  determined 
by  a  jury. 

Demurrer  overruled,  and  case  remanded  to  the  common  pleas  divi- 
sion for  further  proceedings.* 

*  Requirement  of  All  Practicable  Care — To  What  Particulars  It  Ap- 
plies.—(a)  Acts  of  Others.— Chicago  &  Alton  R.  Co.  v.  Pillsbury.  123  IlL  9, 
14  N.  E.  22,  5  Am.  St.  Rep.  483  (1887).  accords  with  the  princiijal  case.  Contra: 
Missimer  v.  Phil.  R.  Co..  17  Phlla.  (Pa.)  172  (1885).  And  .see  Fewinsrs  v.  Men- 
denhall,  88  Minn.  33G,  93  N.  W.  127,  60  L.  R.  A.  601,  97  Am.  St.  Rep.  r>VJ 
(1903). 

For  bodily  injury  to  a  passenger  from  the  disorderly  conduct  of  another 
passenger,  when  such  injury  was  reasonably  to  have  been  anticipated,  a  com- 
mon carrier  is  liable,  if  it  is  attributable  to  his  failure  to  use  the  highest 
practicable  care  to  protect  the  passenger  injured.  Simmons  v.  New  Bedford 
Steamboat  Co..  97  Mass.  361.  93  Am.  Dee.  99  (1867);  Flint  v.  Norwich,  etc., 
Co.,  34  Conn.  5.54,  Fed.  Cas.  No.  4,873  (1868) ;  Lucy  v.  Chicago,  etc.,  Co.,  64 
Minn.  7.  65  N.  W.  944,  31  L,.  R.  A.  551  (1896).  But  see  Tall  v.  Steam  I»acket 
Co.,  90  Md.  248,  44  Atl.  1007,  47  L.  R.  A.  120  (1899). 

(b)  Management  of  Vehicles  Other  than  That  in  Which  the  Passenger  /.? 
7?!f/t/! 7-— Sherlock  v.  Ailing,  44  Ind.  184  (1873);  Atlanta,  etc.,  Co.  v.  Bates,  10.^ 
Ga.  333,  30  S.  E.  41  (1898).  And  see  Hayne  v.  Union  ,St.  Ry.  Co.,  1.S9  Mass. 
551,  76  N.  E.  219,  3  L.  R.  A.  (N.  S.)  605,  109  Am.  St.  Rep.  655  (1905),  ante, 
p.  80,  note. 

(c)  Passengers  Not  in  Coxirse  of  Transportation. — A  carrier  is  bound  to 
conduct  transportation  with  the  same  care  for  his  passenger's  safety,  whether 
the  passenger  is  in  the  A-ehlcle  or  out  of  it.  provided  he  is  at  the  time  so 
imder  the  carrier's  protection  that  the  relation  of  passenger  and  carrier  ex- 
ists. As  to  when  the  relation  exists,  see  post,  pp.  489-495,  517-524.  Hence  a 
railroad  must  use  all  practicable  care  in  running  a  train  not  to  run  over  a  pas- 
senger about  to  board  another  train.  Warren  v.  Fitchburg  R.  Co..  8  Allen 
(Mass.)  227,  85  Am.  Dec.  700  (1864).  Or  a  passenger  just  alighted  from  anoth- 
er train.  Gaynor  v.  Old  Col.  Ry.  Co.,  100  Mass.  208,  97  Am.  Dec.  96  (1868), 
semble;  Denver,  etc.,  R.  Co.  v.  Hodgson,  18  Colo.  117,  31  Pae.  954  (1892),  sem- 
ble;  Pennsylvania  Co.  v.  McCaffrey,  173  111.  169.  50  N.  E.  713  (1S98).  semble. 
In  placing  a  stool  for  a  passenger  to  step  on  In  alighting.  Southern  Ry.  Co.  v. 
Reeves,  116  Ga.  743,  42  S.  E.  1015  (1902).  In  starting  its  street  car  as  a  pas- 
senger is  about  to  get  on.  Lewis  v.  Houston  El.  Co.,  39  Tex.  Civ.  App.  625,  88 
S.  W.  489  (190.5).  In  reversing  the  pole  of  a  trolley  car.  Keator  v.  Scranton 
Traction  Co.,  191  Pa.  102,  43  Atl.  86,  44  L.  R.  A.  54(5,  71  Am.  St.  Rep.  758  (1899). 
In  taking  trunks  from  a  baggage  car  when  a  passenger  is  standing  on  the  station 
platform.  Holcombe  v.  So.  Ry.  Co.,  66  S.  C.  6,  44  S.  E.  68  (1903).  In  handling 
a  steamboat's  gang  plank  when  a  passenger,  leaving  the  boat  to  get  breakfast 
ashore,  has  just  reached  the  wharf.  Dodge  v.  Boston,  etc.,  S.  S.  Co.,  post.  p. 
517.  In  discharging  cargo.  Packet  Co.  v.  True,  88  111.  608  (1878).  Compare 
Central  R.  R.  Co.  v.  Perry,  58  Ga.  461  (1877). 

(d)  Safety  of  premises. — In  Pennsylvania  Co.  v.  Marion.  104  Ind.  230.  3  N. 
E.  874  (18S5),  it  was  said:  "While  it  is  the  duty  of  a  railroad  company  to  keep 
its  platform  and  approaches  safe  and  convenient  for  the  ingress  and  egress. 


€h.  2)  LIABILITY    FOR   INJURY   TO   PASSENGERS.  333 

VAN  BLARGOM  v.  CENTRAL  R.  CO.  OF  NEW  JERSEY. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1906.    73  N.  J.  Law,  540,  64 

Atl.  111.) 

Magie,  Ch.5  The  judgment  of  the  Supreme  Court,  brought  into 
review  by  this  writ  of  error,  affirmed  a  judgment  of  the  circuit  court 
of  the  county  of  Essex,  entered  upon  a  verdict  of  a  jury  in  an  action 
by  an  administrator  to  obtain  damages  on  the  ground  of  the  death  of 
his  intestate,  which  was  claimed  to  have  resuUed  from  the  negHgence 
of  the  plaintiff  in  error. 

Of  the  numerous  assignments  of  error  presented  in  the  Supreme 
Court  and  here,  only  one  has  been  deemed  of  sufficient  importance  to 
require  discussion.  The  question  is  raised  upon  an  assignment  of 
error  founded  upon  an  exception  to  a  portion  of  the  charge  of  the 
trial  judge  to  the  jury.  To  make  intelligible  the  point  thus  presented, 
it  is  proper  to  say  that  the  evidence  disclosed  that  the  intestate  was  in 
the  employ  of  the  railroad  company  at  the  time  of  his  death.  It  ap- 
peared that  he,  with  others,  was  riding  upon  a  locomotive  engine,  after 
the  close  of  their  work,  and  were  returning  to  the  place  where  the  lo- 
comotive would  be  left  for  the  night,  and  they  would  go  to  their 
homes.     While   the   locomotive  was  proceeding  in  that   direction,   it 

■of  passengers  to  and  from  its  cars,  the  rigor  of  the  rule  which  requires  it. 
out  of  considerations  of  public  policy,  to  exercise  the  highest  possible  diligence 
for  the  benefit  of  the  passenger  while  in  the  actual  progress  of  his  journey, 
and  holds  it  responsible  for  the  slightest  defect  in  its  machinery,  track  and 
appliances,  is  measurably  relaxed  with  respect  to  its  platform  and  approaches. 
With  respect  to  these,  it  is  to  be  held  to  that  reasonable  degree  of  care  for 
the  safety  and  protection  of  its  patrons,  having  regard  to  the  nature  of  its 
business,  as  is  demanded  of  individuals  upon  whose  premises  others  come  by 
invitation  or  inducement  for  the  transaction  of  business." 

This  rule  has  been  applied  by  many  courts,  even  where  a  person  is  injured 
by  an  imperfection  in  the  platform  in  the  very  act  of  alighting  from  the 
train  and  before  he  has  ceased  to  be  a  passenger.  Pennsylvania  Co.  v.  Marion. 
104  Ind.  239.  3  N.  E.  874  (1SS5) :  Falk  v.  N.  Y.,  etc..  R.  Co.,  56  N.  J.  Law.  380. 
29  Atl.  157  (1894);  Finseth  v.  Suburban  Ry.  Co.,  32  Or.  1,  .51  Pac.  84.  39  L. 
R.  A.  517  (1897) ;  St.  Louis,  etc.,  Ry.  Co.  v.  Barnett,  65  Ark.  255.  45  S.  W.  550 
(1898),  semble ;  Crowe  v.  Michigan  Central  R.  Co.,  142  Mich.  093,  106  N.  AY. 
395  (1906),  semble. 

Contra,  and  holding  that  the  carrier  is  bound  to  the  same  high  care  in  pro- 
viding a  safe  place  to  alight  as  in  conducting  transportation.  Mo.  Pac.  Ry. 
Co.  V.  Wortham,  73  Tex.  25,  10  S.  W.  741,  3  L.  R.  A.  769  (1889) ;  Topp  v. 
United  Rys.,  etc.,  Co..  99  Md.  52.  .59  Atl.  52  (1904).  semble. 

On  the  other  hand,  it  is  held  in  some  states  that  the  care  which  a  com- 
mon carrier  owes  its  passengers  to  keep  in  safe  condition  its  platforms,  sta- 
tions, and  other  premises  where  they  have  a  right  as  passengers  to  be.  is 
the  same  in  degree  as  that  which  it  owes  in  running  its  trains;  that  it  owes 
this  care,  not  only  when  the  passenger  is  in  the  act  of  getting  into  or  out  of 
its  cars,  but  at  all  times  when  the  relation  of  passenger  and  carrier  exists; 
and  that  it  is  an  obligation  distinct  from  the  duty  of  using  the  care  of  a 
prudent  man  not  to  expose  to  hidden  dangers  which  measures  the  carrier's 
duty  towards  those  who  come  to  its  stations  upon  other  business  or  who  come 


5  Part  of  the  opinion  is  omitted. 


^34  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

left  the  rails,  was  overturned,  and  the  intestate  received  injuries  from 
which  he  died. 

It  is  obvious,  from  these  facts,  that  the  question  was  whether  the 
railroad  company,  the  employer  of  the  intestate,  had  failed  in  the 
performance  of  any  duty  which  it  owed  to  its  employe.  The  evi- 
dence was  directed  to  the  negligence  of  the  company  in  keeping  its 
roadbed  safe  for  the  travel  of  the  locomotive  thereon.  This  court 
has  recently  had  before  it,  for  consideration,  the  question  of  what  duty 
a  railroad  company  owes  to  its  employes,  when  they  are  required,  in 
the  performance  of  their  duties,  to  travel  on  its  trains.  It  was  settled 
that  a  railroad  company  which,  like  other  employers  of  labor,  is  re- 
quired to  take  reasonable  care  to  provide  safe  places  for  its  employes 
to  perform  their  work  in,  is,  upon  the  same  principle,  bound  to  exer- 
cise reasonable  care  to  so  construct  and  maintain  the  tracks  and  road- 
bed as  to  make  them  reasonably  safe  for  such  travel.  It  was  de- 
clared that,  so  far  as  the  trainmen  are  concerned,  the  tracks  and  road- 
bed come  within  the  rule  which  imposes  on  the  employer  the  duty 
to  take  care  that  the  places  in  which,  and  the  appliances  with  which, 
his  employe  is  to  work,  shall  be  reasonably  safe  for  the  purpose. 
Smith  V.  Erie  R.  Co.,  67  N.  J.  Law,  636,  52  Atl.  634,  59  L-  R.  A.  302. 

The  exception  on  which  the  assignment  of  error  now  in  question 
was  based  was  directed  to  a  passage  from  the  charge  of  the  trial  judge, 
which  reads  thus :  "In  the  first  place,  it  was  the  obligation  of  this  rail- 
road company  to  use  a  high  degree  of  care  to  keep  its  roadbed  in  a 

intending  to  be  passengers,  Imt  who  have  not  yet  so  put  themselves  into  the 
carrier's  charge  as  to  become  such.  Warren  v.  Fitchbnrg  K.  Co.,  S  Allen 
(Mass.)  227.  8.5  Am.  Dec.  700  (lSG-1)  ;  Jordan  v.  N.  Y..  etc..  R.  Co.,  16.5  Mass. 
346,  43  N.  E.  111.  32  L.  R.  A.  101.  52  Am.  St.  Rep.  522  (1896),  semble ;  but  see 
Moreland  v.  Boston,  etc..  R.  Co.,  141  Mass.  31.  6  N.  E.  225  (1SS6) :  Gulf,  etc., 
Ry.  Co.  V.  Butcher.  83  Tex.  309.  18  S.  W.  5&3  (1892) ;  Johns  v.  Charlotte,  etc., 
R.  Co..  39  S.  C.  162,  17  S.  E.  698.  20  L.  R.  A.  520,  39  Am.  St.  Rep.  709  (1803) ; 
Illinois  Central  R.  Co.  v.  Treat,  179  III.  576.  54  N.  E.  290  (1899),  semble.  Con- 
tra, holding  that  only  ordinarv  care  is  required.  Latflin  v.  Buffalo,  etc..  R.  Co., 
106  N.  Y.  136.  12  N.  E.  .599.  60  Am.  Rej).  4.33  (1887);  Falls  v.  San  Francisco 
R.  R.  Co.,  97  Cal.  114,  31  Rac.  901  (1893).  semble;  McNaughton  v.  111.  Cent. 
R.  Co..  136  Iowa.  177.  113  X.  W.  844  (1907)  ;  Bacon  v.  Casco  Bay  Steamboat 
Co..  90  Me.  46.  37  Atl.  328  (1897) ;  Maxfield  v.  :Me.  Cent.  R.  Co.,  100  Me.  79, 
60  Atl.  710  (1905). 

Towards  persons  at  stations  who  have  not  yet  become  or  who  have  ceased 
to  be  passengers  only  ordinary  care  is  due,  either  as  to  condition  of  premises, 
Glenn  v.  Lake  Erie  &  W.  R.  Co.  (Ind.  App.)  73  N.  B.  861  (1905),  and  cases  there 
cited  (but  see  Johns  v.  Charlotte,  etc..  R.  Co.,  39  S.  C.  162.  17  S.  E.  698.  20  L. 
R.  A.  520,  39  Am.  St.  Rep.  709  [1893]) ;  or  as  to  running  of  trains,  Chicago 
&  E.  I.  R.  Co.  V.  Jennings.  190  111.  478.  60  N.  E.  818.  54  D.  R.  A.  827  (1901) ; 
Chicago  &  Gd.  Trunk  Ry.  v.  Stewart,  77  111.  App.  66  (1898). 

It  has  been  held  that  the  carrier  need  exercise  only  ordinary  care  to  pre- 
vent a  passenger  falling  over  an  obvious  fixture  in  a  steamer's  deck.  Brus- 
witz  V.  Netherlands,  etc.,  Co.,  64  Hun,  262.  19  N.  Y.  Supp.  75  (1892).  Being 
hurt  by  the  fall  of  an  article  put  by  another  passenger  in  the  rack  over  his 
seat  in  a  car.  Morris  v.  X.  Y.  Cent.  R.  Co.,  106  X.  Y.^678,  13  X.  E.  455  (1887). 
Slipping  on  ice  which  had  formed  on  car  steps  in  a  storm.  Palmer  v.  Pa.  Co., 
Ill  X.  Y.  488,  18  X.  E.  859,  2  L.  R.  A.  252  (1888).  Contra,  as  to  Ice  on  the 
deck  of  a  feri-y  boat.  Rosen  v.  Boston,  187  Mass.  245,  72  X.  E.  992,  68  L.  R.  A. 
153  (1905). 


Ch.  2)  LIABILITY   FOR   INJURY   TO    PASSENGERS.  335 

safe  condition  for  the  uses  for  which  it  was  designed."  The  instruc- 
tion was  deemed  to  be  erroneous  by  the  Supreme  Court,  and  we  en- 
tirely concur  in  the  view  expressed  in  that  court  on  that  subject.  The 
duty  which  devolved  on  the  railroad  company  was  limited  to  the  ex> 
ercise  of  reasonable  care  for  the  safety  of  its  tracks  and  roadbed 
That  duty  should  have  been  placed  before  the  jury,  and  they  should 
have  been  directed  to  find  whether  the  roadbed  was  in  the  condition 
which  reasonable  care  would  have  produced.  To  direct  them  that  the 
company  owed  a  duty  expressed  by  the  words  "a  high  degree  of  care" 
tended  to  mislead,  and  must  have  been  injurious  in  its  result.  *  •:=  * 
As  we  find  the  rule  of  duty  laid  down  was  erroneously  stated,  the 
judgment  must  be  reversed  for  a  venire  de  novo.'' 

8  Ace.  Mo.  Pac.  R.  Co.  v.  Lyde.  57  Tex.  503  (1SS2) ;  Sappenfiekl  v.  :Main 
St.  R.  Co.,  91  Cal.  48,  27  Pac.  500  (1S91) ;  Wabash  R.  Co.  v.  Farrell,  79  111. 
App.  508,  516  (1898). 

As  regards  persons  who  contract  with  a  common  carrier  for  permission 
to  occupy  its  vehicles,  not  primarily  for  the  purpose  of  being  transported  to 
a  particular  destination,  but  in  order  to  transact  business  there  in  their  own 
and  not  in  the  carrier's  behalf,  although  their  legal  relation  to  the  carrier  is 
in  some  respects  like  that  of  employes,  and  not  like  that  of  passengers,  yet 
in  respect  to  the  right  of  safe  carriage  they  have  often  lieen  held  to  be  like 
ordinary  passengers.  That  is  to  say,  although  the  carrier  has  acted  with 
ordinary  prudence,  he  is  liable  for  bodily  injury  attributable  to  a  failure  to 
use  all  practicable  care. 

Postal  Clerks.— Sevbolt  v.  N.  Y..  L.  E.  &  W.  R.  Co..  95  X.  Y.  562.  47  Am. 
Rep.  75  (1SS4);  Mellor  v.  Mo.  Pac.  Co..  105  Mo.  4.55.  16  S.  W.  849.  10  L.  R.  A. 
36  (1891)  ;    So.  Pac.  Co.  v.  Cavin.  144  Fed.  348.  75  C.  C.  A.  3-50  (1906). 

Express  Messengers.— See  P.lair  v.  Erie  Ry.  Co..  66  N.  Y.  313.  23  Am. 
Rep.  55  (1876) :  Fordyce  v.  Jackson.  56  Ark.  .594.  20  S.  W.  528  (1892) ;  Jennings 
V.  Railroad,  15  Ont.  App.  477  (1887)  ;  Union  Pacific  Ry.  Co.  v.  Nichols,  8  Kan. 
505,  12  Am.  Rep.  475  (1871) :  San  Antonio  &  A.  P.  R.y.  Co.  v.  Adams.  6  Tex. 
Civ.  App.  102.  24  S.  W.  839  (1894):  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Wilson.  79  Tex. 
371.  15  S.  W.  280.  11  L.  R.  A.  486.  23  Am.  St.  Rep.  345  (1891);  Voight  v.  B. 
&  O.  S.  W.  Ry.  Co.  (C.  C.)  79  Fed.  561  (1897) :  Savannah.  F.  &  W.  Ry.  Co.  v. 
Boyle.  115  Ga.  836.  42  S.  E.  242.  .59  L.  R.  A.  104  (1902)  ;  Davis  v.  C.  &  O.  Ry. 
Co.,  122  Kv.  528.  92  S.  W.  339,  5  L.  R.  A.  (N.  S.)  4.58.  121  Am.  St.  Rep.  481 
(1906) :  Kentuckv  Cent.  R.  Co.  v.  Thomas,  79  Ky.  160.  42  Am.  Rep.  208  (1880). 
Contra:  Chicago  &  X.  W.  Rv.  Co.  v.  O'Brien,  1.32  Fed.  .593,  67  C.  C.  A.  421 
(1904).  semble.  And  compare  Blank  v.  111.  C.  R.  R.  Co.,  182  111.  332,  339,  55  X. 
E.  332  (1899). 

Pullman  Porters.— Jones  v.  St.  Louis  Southwestern  Ry.  Co..  125  Mo.  666, 
28  S.  W.  883.  26  L.  R.  A.  718,  46  Am.  St.  Rep.  .514  (1894),  semble.  Contra: 
Hughson  v.  Richmond,  etc.,  R.  Co.,  2  App.  D.  C.  98  (1894). 

Venders  of  Goods. — One  who  pays  for  the  privilege  of  tr.aveling  upon 
passenger  trains  for  the  purpose  of  selling  popcorn  is  a  passenger,  swithin  the 
meaning  of  a  statute  imposing  a  penalty  for  negligently  killing  a  passeftger. 
Com.  V.  Vermont  &  :Mass.  R.  R..  108  Mass.  7,  11  Am.  Rep.  .301  (1871).  One  who 
has  bought  the  privilege  of  running  a  bar  upon  a  steamboat  is  a  passenger, 
within  the  rule  that  an  injury  to  a  passenger  from  an  accident  to  the  ma- 
chinery of  transportation  is  presumably  due  to  the  carrier's  negligence.  Yeo- 
mans  v.  Contra  Costa  S.  X.  Co..  44  Cal.  71  (1872).  Compare  Padgitt  v.  Moll, 
159  Mo.  143,  60  S.  W.  121,  52  L.  R.  A.  8.54,  81  Am.  St.  Rep.  347  (1900) :  In- 
dianapolis St.  Ry.  Co.  V.  Hockett,  101  Ind.  196.  67  X.  E.  106  (IfXJS),  newsboys 
entering  street  car  by  permission  of  company  to  sell  to  passengers. 

Persons  Entering  Vehicles  to  Assist  Passengers  to  a  .Seat. — A  person 
who,  with  the  carrier's  knowledge,  is  permitted  to  enter  a  car  to  give  neces- 
sary assistance  to  a  passenger,  is  entitled  to  care  from  the  carrier,  and.  if 
injured  by  the  negligent  starting  of  the  train  before  he  has  had  an  opportunity 


■336  EXCErXIONAL   LIABILITY   OF   COMMOX  CARPJER.  (Part   4, 

WILLI A:MS  v.  SPOKANE  FALLS  &  N.  RY.  CO. 

(Supreme  Court  of  Washington,  1905.     39  Wash.  77,  80  Pac.  1100.) 

Dunbar,  J.'^  Respondent  was  a  railway  postal  clerk  in  the  service 
of  the  United  States.  On  August  15,  1903,  he  was  one  of  the  clerks 
in  charge  of  a  postal  car  attached  to  a  train  of  the  appellant  running 
between  Spokane  and  Northport.  The  car  on  which  he  was  occupied 
was,  pursuant  to  the  usual  custom,  detached  from  the  train  at  the 
latter  point,  and  set. in  on  a  side  track,  to  be  returned  to  Spokane  on 
the  day  following.  Northport  is  a  terminal  point,  and  trains  are  made 
up  at  that  point  for  other  destinations.  The  siding  upon  which  this 
postal  car  was  placed  was  300  feet  in  length,  and  an  even  grade.  A 
switch  engine  engaged  in  making  up  a  passenger  train  entered  upon 
this  track  with  a  baggage  car  and  two  coaches.  For  some  cause,  un- 
known and  unexplained  by  the  testimony,  the  coupler  which  con- 
nected the  baggage  car  with  the  tender  of  the  locomotive  parted,  and 
the  three  cars  ran  along  the  siding  and  collided  with  the  postal  car 
which  contained  the  respondent,  injuring  him  most  seriously.  This 
action  was  brought  to  recover  damages  for  the  injuries  so  sustained, 
and  resulted  in  a  verdict  in  respondent's  favor.  Motion  for  new  trial 
was  duly  entered  and  overruled,  and  judgment  rendered  upon  the 
verdict,  from  which  judgment  this  appeal  is  taken. 

It  is  conceded  that  the  respondent  was  performing  his  duty  on  the 
car,  and  it  is  also  conceded  that  the  rules  of  law  applying  to  passen- 
gers on  a  railroad  car  apply  to  him.  At  the  conclusion  of  the  testi- 
mony for  both  respond^ent  and  appellant,  the  appellant  requested  the 
court  to  charge  the  jury  to  find  for  the  defendant.  This  request  was 
overruled,  and  upon  the  action  of  the  court  in  this  respect  is  based 
the  first  assignment  of  error,  the  contention  being  that  there  was  no 
proof  that  there  was  any  negligence  on  the  part  of  the  appellant;  that 
there  is  no  allegation  that  there  was  any  defect  in  the  construction 
of  the  cars  or  in  their  equipment,  or  that  they  were  in  a  defective  or 
tmsafe  condition,  in  any  respect,  at  the  time  of  the  happening  of  the 

to  get  out  safely,  may  maintain  an  action.  It  has  been  held  that  the  carrier 
owes  such  a  person  the  same  high  degree  of  care  which  is  owed  to  a  passen- 
ger. Louisville  &  Nashville  R.  R.  Co.  v.  Crunk,  119  Ind.  542,  21  N.  E.  31, 
12  Am.  St.  Rep.  443  (1889).  And  see  note  in  14  Harv.  L.  R.  69.  But  the  weight 
of  authority  requires  only  the  ordinary  degree  of  care.  Lucas  v.  N.  B.  »&  T. 
R.  R.  Co,,  6  Gray  (Mass.)  64,  66  Am.  Dec.  406  (1856).  And  see  Flaherty  v. 
B.  &  M.  B.  R,,  1S6  Mass.  567,  72  N.  E.  66  (1904) ;  Railway  Co.  v.  Miller,  8 
Tex.  Civ,  App.  241,  27  S.  W.  905  (1894) ;  Doss  v.  M..  K.  &  T.  R.  R.  Co.,  59  Mo. 
27,  21  Am.  Rep.  371  (1875) ;  Coleman  v.  Ga.  R.  &  Banking  Co.,  84  Ga.  1,  10  S.  E. 
498  (1889) ;  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Lawton,  55  Ark.  428,  18  S.  W.  543, 
15  L,  R,  A,  434,  29  Am,  St.  Rep.  48  (1892) ;  International  &  G,  N,  R,  Co,  v, 
Satterwhite,  15  Tex,  Civ,  App,  102,  38  S.  W.  401  (1896) ;  Dunne  v.  N.  Y„  N,  H, 
&  H.  R,  Co.,  99  App.  Div.  571,  91  N.  Y.  Supp.  145  (1904) ;  15  L.  R.  A.  434, 
note. 

As  to  a  carrier's  duty  toward  persons  who  enter  its  cars  or  station  merely 
to  accompany  a  passenger,  see  Carriers,  Dec.  Dig.  §  304. 

7  Part  of  the  opinion  is  omitted. 


Ch,  2)  LIABILITY    FOR    INJURY   TO    PASSENGERS.  337 

accident;  and  that  no  legal  presumption  of  negligence  arose,  casting 
upon  appellant  the  burden  of  disproving  it.  The  particular  negligence 
alleged  is  that,  while  respondent  was  in  the  discharge  of  his  duties  in 
a  postal  car  on  a  siding  at  Northport,  the  appellant's  servants  and 
employes  negligently  ran  and  propelled  against  said  mail  car  other 
cars,  by  means  of  a  locomotive  operated  by  it,  and  said  mail  car  was 
struck  by  said  cars,  propelled  with  great  force  and  violence,  pushing 
it  along  for  a  distance  and  derailing  it,  thereby  throwing  respondent 
down.  The  answer  denied  any  negligence,  and  it  is  contended  that 
there  was  no  negligence  shown. 

Hawkins  v.  Front  Street  Cable  Ry.  Co.,  3  Wash.  St.  592,  28  Pac. 
1021,  16  L.  R.  A.  808,  28  Am.  St.  Rep.  72,  and  Allen  v.  N.  P.  Ry. 
Co.,  35  Wash.  221,  77  Pac.  201,  66  L.  R.  A.  801,  are  relied  upon  to 
sustain  the  appellant's  contention.  In  Hawkins  v.  Cable  Ry.  Co., 
supra,  this  court  held  that  the  following  instruction,  "It  is  the  law 
that,  where  a  passenger  being  carried  on  a  train  is  injured  without 
fault  of  his  own,  there  is  legal  presumption  of  negligence,  casting 
upon  the  carrier  the  burden  of  disproving  it,"  constituted  reversible 
error,  as  being  too  broad  a  statement  of  the  responsibility  of  the  car- 
rier. There,  it  will  be  observed,  the  instruction  overruled  had  no 
limitations  whatever;  and,  under  that  instruction,  if  the  passenger 
had  been  injured  by  some  unavoidable  accident,  disconnected  entirely 
from  the  railroad  company,  such  as  an  injury  resulting  from  the  dis- 
charge of  a  firearm  by  some  one  in  the  car,  or  through  the  window 
by  some  one  outside  of  the  car,  the  company  would  have  been  held 
responsible.  So  that  it  is  not  enough  that  the  passenger  is  injured 
without  fault  of  his  own,  but  the  injury  must  be  connected  in  some 
way  with  the  operation  of  the  road;  and,  when  the  injury  is  so  con- 
nected, we  think,  under  the  overwhelming  weight  of  authority,  that 
a  prima  facie  case  of  negligence  is  made  out  by  the  plaintiff,  and 
that  the  duty  devolves  upon  the  company  to  establish  a  want  of  negli- 
gence on  its  part.  And  the  cases  cited  by  this  court  in  that  case  show 
that  such  was  the  view  that  the  court  took  of  the  law. 

There  is  nothing  in  the  case  of  Allen  v.  N.  P.  Ry.  Co.,  supra,  to 
sustain  appellant's  contention.  Mr.  Thompson,  in  his  Commentaries 
on  the  Law  of  Negligence,  vol.  3,  §  2751,  very  happily  expresses 
the  distinction  which  we  have  sought  to  make.  The  section  is  as  fol- 
lows: "In  every  action  by  a  passenger  against  a  carrier  to  recover 
damages  predicated  upon  the  negligence  or  misconduct  of  the  latter, 
the  burden  of  proof  in  the  first  instance  is,  of  course,  upon  the  plaintiff 
to  connect  the  defendant  in  some  way  with  the  injury  for  which  he 
claims  damages.  But  when  the  plaintiff  has  sustained  and  discharged 
this  burden  of  proof  by  showing  that  the  injury  arose  in  consequence 
of  the  failure,  in  some 'respect  or  other,  of  the  carrier's  means  of  trans- 
portation, or  the  conduct  of  the  carrier's  servants,  then,  in  conformity 
with  the  maxim  res  ipsa  loquitur,  a  presumption  arises  of  negligence 
Green  Carr.— 22 


338  EXCErTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

on  the  part  of  the  carrier  or  his  servants,  which,  unless  rebutted  by 
him  to  the  satisfaction  of  the  jury,  will  authorize  a  verdict  and  judg- 
ment against  him  for  the  resulting  damages.  Stated  somewhat  dif- 
ferently, the  general  rule  may  be  said  to  be  that  where  an  injury  hap- 
pens to  the  passenger  in  consequence  of  the  breaking  or  failure  of  the 
vehicle,  roadway,  or  other  appliance  owned  or  controlled  by  the  car- 
rier, and  used  by  him  in  making  the  transit,  or  in  consequence  of  the 
act,  omission,  or  mistake  of  his  servants,  the  person  entitled  to  sue 
for  the  injury  makes  out  a  prima  facie  case  for  damages  against  the 
carrier  by  proving  the  contract  of  carriage ;  that  the  accident  happen- 
ed in  consequence  of  such  breaking  or  failure,  or  such  act,  omission, 
or  mistake  of  his  servants;  and  that  in  consequence  of  the  accident 
the  plaintiff  sustained  damage." 

And  in  section  2756,  showing  that  the  presumption  arises  not  from 
the  happening  of  the  accident,  but  from  a  consideration  of  the  cause 
of  the  accident,  it  is  further  said :  "It  has  been  pointed  out  by  an  able 
judge  that  the  presumption  which  arises  in  these  cases  does  not  arise 
from  the  mere  fact  of  the  injury,  but  from  a  consideration  of  the 
cause  of  the  injury.  Thus  it  was  said  by  Ruggles,  J. :  'A  passenger's 
leg  is  broken  while  on  his  passage  in  the  railroad  car.  This  mere 
fact  is  no  evidence  of  negligence  on  the  part  of  the  carrier  until  some- 
thing further  be  shown.  If  the  witness  who  swears  to  the  injviry  tes- 
tifies also  that  it  was  caused  by  a  crash  in  a  collision  with  another 
train  of  cars  belonging  to  the  same  carriers,  the  presumption  of  neg- 
ligence immediately  arises — not,  however,  from  the  fact  that  the  leg 
was  broken,  but  from  the  circumstances  attending  the  fact.'  "  And  a 
wilderness  of  cases  is  cited  to  sustain  the  announcement  of  the  text. 

The  cases  on  this  subject  are  collated  in  the  Century  Digest,  vol.  9, 
commencing  on  page  1235,  and  the  doctrine  is  almost  universally  an- 
nounced that  the  fact  that  an  injury  results  from  a  railroad  collision 
without  any  fault  of  the  passenger  is  prima  facie  evidence  of  care- 
lessness, negligence,  or  want  of  skill  on  the  part  of  the  company,^ 
and  the  burden  is  upon  it  to  prove  that  the  accident  was  not  occasioned 
by  the  fault  of  its  agents.  Goble  v.  Delaware,  L.  &  W.  R.  Co.,  Fed. 
Cas.  No.  5,488a;  Smith  v.  St.  Paul  City  Ry.  Co.,  32  Alinn.  1,  18  N. 
W.  827,  50  Am.  Rep.  550;  New  Orleans,  J.  &  G.  N.  R.  Co.  v.  All- 
britton,  38  Miss.  242,  75  Am.  Dec.  98 ;  Chicago  City  Ry.  Co.  v.  Engel, 
35  111.  App.  490;  Central  Pass.  Ry.  Co.  v.  Bishop,  9  Ky.  Law  Rep. 
348;  N.  C.  St.  Ry.  Co.  v.  Cotton,  140  111.  486,  29  N.  E.  899— and 
many  other  cases  too  numerous  to  cite,  the  circumstances  of  which  are 
parallel  in  principle  with  the  circumstances  in  this  case,  support  the 

8  But  see  Mitchell  v.  Chicago,  etc.,  Co.,  51  Mich.  236,  16  N.  W.  388,  47  Am. 
Rep.  566  (1883) ;  Thurston  v.  Detroit,  etc.,  Co.,  137  Mich.  231,  100  N.  W.  305 
(1904) ;  Stoodv  v.  Railway  Co.,  124  Mich.  420,  83  N.  W.  20  (1900)  ;  Ayles  v.  So. 
Eastern  Ry.  Co.,  L.  R.  3  Ex.  146  (1808) ;  Hammack  v.  White,  11  C.  B.  (N. 
S.)  588,  593,  594  (1802)  ;  East  Indian  Ry.  Co.  v.  Kalidas  Mukerjee,  [1901]  A. 
C.  396. 


Ch,  2)  LIABILITY    FOR    INJURY   TO   PASSENGERS.  339 

law  announced.  This  is  also  in  accordance  with  a  decision  made  by 
this  court  in  Walker  v.  ?\IcNeill,  17  Wash.  583,  50  Pac.  518,  where 
it  was  said :  "Whenever  a  car  or  train  leaves  the  track,  it  proves  that 
either  the  track  or  machinery,  or  some  portion  thereof,  is  not  in  proper 
condition,  or  that  the  machinery  is  not  properly  operated."  And  this 
is  the  just  and  equitable  rule,  for  the  cause  of  the  accident  is  within 
the  knowledge  of  the  railroad  company,  while  it  might  be  a  difficult 
matter  for  the  plaintiff  to  prove  what  the  cause  of  the  accident  was. 

So  far  as  the  proof  was  concerned,  we  think,  also,  that  there  was 
ample  proof  to  show  negligence  on  the  part  of  the  appellant.  There 
was  testimony  to  the  eft'ect  that  this  coupling  had  come  apart  several 
times  before,  and  that  it  was  within  the  knowledge  of  the  appellant's 
servants  that  it  was  liable  to  come  apart ;  and,  having  that  knowledge, 
it  had  no  right  to  throw  off  the  safety  chains  simply  for  the  purpose 
of  expediting  its  business,  to  the  extent  of  imperiling  the  life  of  the 
respondent.  This  manner  of  switching  could  only  be  safely  done  and 
relied  upon  on  the  supposition  that  the  coupling  could  be  absolutely 
depended  upon,  and  the  removal  of  the  safety  appliance  under  such 
circumstances  constituted  negligence  on  the  part  of  the  company  to- 
wards its  passengers. 

We  think  the  court  committed  no  error  in  overruling  the  appellant's 
motion  for  an  instruction  to  find  a  verdict  for  the  defendant.''     *     *  * 


9  Persons  Who  are  Entitled  to  the  Benefit  of  the  Presumption  of 
Negligence. — In  Patton  v.  Texas  &  Pacitic  Railway  Co.,  179  U.  S.  G."J8, 
662.  21  Sup.  Ct.  275,  45  L.  Ed.  361  (1901),  an  action  by  a  fireman  injured 
throusli  a  defect  in  his  locomotive,  the  trial  court  directed  a  verdict  for  the 
defendant  and  the  U.  S.  Supreme  Court  aftirmed  the  judgment.  Brewer,  J., 
speaking  for  the  court  said,  after  a  review  of  the  evidence:  "Upon  these  facts 
we  make  these  observations:  First.  That  while  in  the  case  of  a  passenger 
the  fact  of  an  accident  carries  with  it  a  presumption  of  negligence  on  the  part 
of  the  carrier,  a  presumption  which  in  the  absence  of  some  explanation  or 
proof  to  the  contrary  is  sufficient  to  sustain  a  verdict  against  him.  for  there 
is  in-iina  facie  a  breach  of  his  contract  to  carry  safely  (Stokes  v.  Saltonstall, 
13  Pet.  ISl  [10  L.  Ed.  115]  ;  Railroad  (\)mitany  v.  Pollard.  22  Wall.  341  [22 
L.  Ed.  877];  Gleeson  v.  Virginia  :Midland  Railroad,  140  U.  S.  435,  443  [11 
Sup.  Ct.  859,  35  L.  Ed.  458]),  a  different  rule  obtains  as  to  an  employe.  The 
fact  of  accident  carries  with  it  no  presumption  of  negligence  on  the  part  of 
the  employer,  and  it  is  an  affirmative  fact  for  the  injured  emi)loye  to  estab- 
lish that  the  emplover  has  been  guilty  of  negligence.  Texas  &  Pacific  Rail- 
way V.  Barrett,  IGo'u.  S.  017  [17  Sup.  Ct.  707.  41  L.  Ed.  1136].  Second.  That 
in  the  latter  case  it  is  not  sufficient  for  the  employ^  to  show  that  the  employer 
may  have  been  guilty  of  negligence— the  evidence  must  point  to  the  fact  that 
he  was.  *  *  *  if  the  employ^  is  unable  to  adduce  sufficient  evidence  to 
show  negligence  on  the  part  of  the  employer,  it  is  only  one  of  the  many  cases 
in  which  the  plaintiff  fails  in  his  testimony,  and  no  mere  sympathy  for  the 
unfortunate  victim  of  an  accident  justifies  any  departure  from  settled  rules 
of  proof  resting  upon  all  plaintiffs," 

It  has  been  held  that  a  postal  clerk,  like  an  ordinary  passenger,  has  the  ben- 
efit of  the  presumption  of  negligence.  :Magoffin  v.  Mo.  Pac.  Ry.  Co.,  102  Mo. 
540  15  S.  W.  76.  22  Am.  St.  Rep.  798  (1890);  Gleeson  v.  Va.  Midland  R.  R. 
Co.,  140  U.  S.  435,  11  Sup.  Ct.  859.  35  L.  Ed.  458  (1891). 

It  has  been  held  otherwise  as  to  au  express  mes-senger.  Chicago,  etc.,  Ry. 
Co.  V.  O'Brien,  132  Fed.  593,  67  C.  C.  A.  421  (1904).    And  as  to  a  Pullman  por- 


340  EXCErTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

LOUDOUN  V.  EIGHTH  AVE.  R.  CO. 

(Court  of  Appeals  of  New  York,  1900.     162  N.  Y.  380,  56  N.  B.  988.) 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  First  judicial  department,  entered  April  23,  1897,  affirm- 
ing a  judgment  in  favor  of  plaintiff  entered  upon  a  verdict,  and  an  or- 
der denying  a  motion  for  a  new  trial. 

ter.    Ilughson  v.  Richmond,  etc.,  R.  Co.,  2  App.  D.  C.  98  (1894).    But  see  ante, 
p.  3.35,  note. 

Facts  upon  Which  the  Presumption  of  Negligence  is  Founded. — The 
presumption  of  negligence  arises  where  injury  to  a  passenger  is  due  to  a 
landslide  from  the  side  of  a  railroad  cutting.  Gleeson  v.  Ya.  Midland  R. 
Co.,  140  U.  S.  435,  11  Sup.  Ct.  859,  35  L.  Ed.  458  (1891).  But  not  where  it  is 
due  to  the  falling  of  a  stone  from  a  hillside  above  the  cutting.  Fleming  v. 
PittsBurg.  etc.,  Ry.,  158  Pa.  130,  27  Atl.  858,  22  L.  R.  A.  351,  38  Am.  St.  Rep. 
835  (1893).  It  arises  where  a  passenger  is  struck  by  a  piece  of  coal  thrown 
or  falling  from  a  passing  train.  Louisville  &  Nashville  Ry.  Co.  v.  Reynolds, 
71  S.  W.  516,  24  Ky.  Law  Rep.  1402  (1903).  But  it  does  not  arise  from  the 
mere  fact  that  there  is  some  evidence  that  the  object  which  struck  the  pas- 
senger was  a  piece  of  coal  so  thrown.  Pennsvlvania  R.  Co.  v.  IMacKinney, 
124  Pa.  402.  17  Atl.  14.  2  L.  R.  A.  820,  10  Am.  St.  Rep.  601  (1889).  Or  that 
it  was  an  iron  bolt  like  that  used  on  freight  cars.  Pa.  R.  Co.  v.  IMcCaffrey, 
149  Fed.  404,  79  C.  C.  A.  224  (1907).  It  arises  where  a  passenger  is  hit  by 'a 
hot  cinder  from  the  locomotive.  Texas  Midland  Ry.  Co.  v.  Jumper,  24  Tex. 
Civ.  App.  671,  60  S.  W.  797  (1901).  But  not  where  he  is  hit  by  a  stream  of  wa- 
ter entering  the  car,  but  not  shown  to  have  proceeded  from  an  a]jpliance  be- 
longing to  the  carrier.  Spencer  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  105  ^Vis.  311. 
81  N.  W.  407  (1900).  No  presumption  of  the  carrier's  negligence  arises  from 
the  fact  that  a  passenger  falls  when  getting  out  of  the  car.  Pennsylvania 
Co.  V.  Marion,  104  Ind.  239,  3  N.  E.  874  (188.5) ;  Lincoln  Traction  Co.  v."^  Webb, 
73  Neb.  136,  102  N.  W.  258,  119  Am.  St.  Rep.  879  (190.5).  Even  though  the  pas- 
senger acts  with  due  care.  Chicago  City  Ry.  Co.  v.  Catlin,  70  111.  App.  97 
<1897).  And  there  is  evidence  of  the  carrier's  negligence.  Delaware,  L.  & 
W.  R.  Co.  V.  Napheys,  90  Pa.  135  (1879).  Contra:  Doolittle  v.  Southern  Ry. 
Co.,  62  S.  C.  130,  40  S.  E.  133  (1901) ;  Texas  &  P.  Ry.  Co.  v.  Gardner,  114 
Fed.  186,  52  C.  C.  A.  142  (1902),  semble ;  Bush  v.  Barnett,  96  Cal.  202,  31  Pac. 
2  (1892),  semble. 

Nor  does  a  presumption  of  negligence  arise,  though  an  act  or  appliance  of 
the  can-ier  contributed  to  the  injury,  if  the  thing  done  was  usual  in  the  ordi- 
nary and  proper  conduct  of  his  business. 

So  the  mere  facts  that  in  the  coupling  of  ears  a  train  receives  a  jar,  and 
that  the  jar  causes  a  passenger  to  fall  against  a  car  seat  and  suffer  serious 
injury,  do  not  raise  a  presumption  that  the  coupling  was  negliffently  per- 
formed. Herstine  v.  Lehigh  V.  R.  R.  Co.,  151  Pa.  244,  25  Atl.  104  "(1S92). 
Contra:  Railroad  Co.  v.  Pollard,  22  Wall.  341,  22  L.  Ed.  877  (1874),  where 
train  stopped  abruptly  at  a  .station.  Nor  does  the  presumption  arise  where 
the  jolting  of  the  train  in  coming  to  a  stop  causes  the  car  door  to  shut  up- 
on the  hand  of  an  alighting  passenger.  Denver  &  R.  G.  R.  Co.  v.  Frothing- 
ham,  17  Colo.  410,  68  Pac.  978  (1902);  Weinschenck  v.  New  York,  N.  H.  & 
H.  R.  R.,  190  Mass.  250,  76  N.  E.  662  (1906).  Nor  where  a  brakeman  shuts 
the  door  upon  a  passenger's  hand.  Texas  &  Pac.  Ry.  Co.  v.  Overall,  81  Tex. 
247,  18  S.  W.  142  (1891).  Nor  where  a  passenger  is  hit  by  a  swinging  door 
in  a  ferryboat.  Hayman  v.  Pa.  R.  Co.,  118  Pa.  508,  11  Atl.  815  (1888)^.  Nor 
where,  because  a  car  door  is  open  against  the  rules  of  the  company,  a  cin- 
der, which  without  the  carrier's  negligence  escapes  from  the  locomotive,  en- 
ters the  car  and  gets  into  a  passenger's  eye.  Missouri,  K.  &  T.  Rv.  Co.  v. 
Orton,  67  Kan.  848,  73  Pac.  63  (1903).  But  see  Cody  v.  Market  St."^Rv.  Co., 
148  Cal.  90,  82  Pac.  666  (1905). 


Ch.  2)  LIABILITY    FOR   INJURY   TO    PASSENGERS.  341 

CuLLEN,  J.^°  This  action  was  brought  to  recover  damages  for  per- 
sonal injuries  alleged  to  have  been  received  in  a  collision  between  the 
cars  of  the  two  defendants.  The  plaintiff  and  her  husband  were  pas- 
sengers in  an  open  horse  car  on  the  Eighth  Avenue  Railroad.  The 
Third  Avenue  Railroad  Company  operated  a  cable  road  on  One  Hun- 
dred and  Twenty-Fifth  street,  which  crosses  Eighth  avenue  at  right 
angles.  At  the  time  of  the  collision  the  plaintiff  was  sitting  in  the  rear 
seat  of  the  Eighth  Avenue  car.  That  car,  while  passing  over  the  in- 
tersection of  the  two  roads,  was  struck  by  the  cable  car  at  the  point 
where  the  plaintiff  was  sitting,  with  such  force  as  to  throw  the  horse 
car  from  the  track.  The  plaintiff  was  thrown  down  from  her  seat, 
and  undoubtedly  was  bruised,  but  whether  she  received  the  serious 
injuries  to  her  nerves  and  health  for  which  she  was  allowed  com- 
pensation was  a  matter  of  controversy.  The  evidence  as  to  the  man- 
ner in  which  the  collision  occurred  is  extremely  meager,  consisting 
only  of  the  testimony  of  the  plaintiff  and  her  husband.  Neither  de- 
fendant produced  as  witnesses  the  employes  in  charge  of  its  car. 
Neither  the  plaintiff  nor  her  husband  noticed  the  approach  of  the 
cable  car,  and  they  were  able  to  state  only  that,  while  the  car  in  which 
they  were  riding  was  passing  over  the  crossing,  it  was  struck  by  the 
other  car. 

We  agree  with  the  learned  court  below  that  the  details  of  the  col- 
lision, meager  as  they  were,  required  submission  to  the  jury  of  the 
issue  of  negligence  as  to  each  defendant,  and  that  a  nonsuit  as  to  ei- 
ther would  have  been  improper.  *  *  *  We  are  of  opinion,  how- 
ever, that  the  learned  trial  judge  erred  in  his  instructions  to  the  jury, 
and  that  for  such  errors  this  judgment  must  be  reversed. 

The  court  charged:  "It  is  therefore  a  reasonable  presumption,  in 
the  absence  of  any  explanation,  that  the  accident  resulted  from  the 
want  of  ordinary  care  on  the  part  of  the  defendants.  When  the  plain- 
tiff rested  her  case,  therefore,  the  burden  was  upon  the  defendants  of 
showing  such  facts  as  warrant  the  conclusion  that  the  accident  was 
due  to  circumstances  which  the  exercise  of  ordinary  care  could  not 
foresee  and  guard  against.  Now,  no  testimony  is  offered  by  the  de- 
fendants to  overcome  this  presumption.  The  driver  of  the  Eighth 
Avenue  car  w^as  not  called.  It  does  not  appear  that  he  was  where 
he  could  be  called.  There  is  no  explanation  given,  and  therefore  I  am 
bound  to  say  to  you  that  there  is  no  testimony  to  overcome  the 
presumption  of  negligence  which  the  circumstances  have  disclosed. 
There  is  no  testimony  on  the  part  of  the  defendants  to  overcome  the 
presumption  created  by  the  circumstances  under  which  the  collision 
took  place." 

As  we  read  this  part  of  the  charge,  the  issue  of  the  defendants' 
negligence  was  substantially  taken  away  from  the  jury.  It  is  true 
that  the  court  repeatedly  charged  that  the  burden  of  proof  rested  on 

10  Parts  of  the  opinion  are  omitted. 


o42  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIEIl.  (Part    4 

the  plaintiff  to  establish  each  element  of  her  case,  including  that  of 
the  negligence  of  the  defendants.  But,  taken  in  connection  with  the 
portion  of  the  charge  quoted,  that  the  accident  raised  a  presumption 
of  negligence,  and  that  there  was  no  testimony  to  overcome  the  pre- 
sumption, the  jury  was  substantially  told  the  plaintiff  had  successfully 
borne  that  burden.  Each  defendant  took  an  exception  to  that  part 
of  the  charge  which  instructed  the  jury  that  the  accident  raised  a  pre- 
sumption of  negligence  against  it,  calling  for  an  explanation,  though 
neither  seems  to  have  excepted  to  the  charge  that  no  explanation  had 
been  given. 

The  appellant  the  Third  Avenue  Railroad  Company  insists  that  the 
doctrine,  "Res  ipsa  loquitur,"  does  not  apply  to  it,  and  that  the  in- 
struction that  the  occurrence  of  the  collision  raised  a  presumption  of 
negligence  upon  its  part  calling  for  an  explanation  was  erroneous. 
With  this  claim  we  agree.  Falke  v.  Railroad  Co.,  38  App.  Div.  49,  55 
N.  Y.  Supp.  984.  That  defendant,  not  being  the  carrier,  was  bound 
only  tOfthe  exercise  of  ordinary  care  in  the  management  of  its  cars. 
If  one  company  had  been  in  the  control  and  management  of  both  the 
cars,  a  presumption  of  negligence  on  its  part  would  properly  arise. 
But  here  there  were  two  actors,  and  the  collision  might  have  been 
due  entirely  to  the  fault  of  one  party,  and  not  at  all  to  the  fault  of  the 
other. 

The  decisions  in  Volkmar  v.  Railway  Co.,  134  N.  Y.  418,  31  N.  E. 
870,  30  Am.  St.  Rep.  630,  and  Hogan  v.  Same,  149  N.  Y.  23,  43  N. 
E.  403,  do  not  apply  to  a  case  like  this.  In  those  cases  pieces  of  iron 
fell  from  the  elevated  railway  structure  and  injured  the  plaintiffs, 
traveling  on  the  highway  beneath.  It  was  held  that  the  occurrence  of 
the  accident  raised  a  presumption  of  negligence.^ ^  But  articles  should 
not  be  suffered  to  fall  on  the  highway,  and  ordinarily  do  not  fall  with- 
out carelessness  on  the  part  of  the  persons  letting  them  fall.  In 
those  cases  the  parties  injured  in  no  way  contributed  to  the  accident, 
except  by  their  presence.  Here  the  railroad  company  had  the  right  to 
operate  its  cars  along  the  street,  and  it  cannot  be  said  that  in  the  or- 
dinary course  of  things  a  car  does  not  collide  with  vehicles  or  persons 
except  when  there  has  been  carelessness  in  the  management  of  the 
car.  Unfortunately,  the  reports  are  full  of  cases  of  such  collisions, 
and  of  serious  injuries  resulting  therefrom,  where  it  has  been  found, 
either  as  matter  of  fact  by  juries,  or  as  matter  of  law  by  the  courts. 


li  111  Scott  y.  London  Dock  Co.,  3  Hurl.  &  C.  50G  (1865),  an  action  for  neg- 
lisently  dropping  upon  the  plaintiff,  a  customs  officer,  bags  of  sugar  wliich 
were  being  lowered  from  a  warehouse  by  a  crane,  p:arle,  C.  J.,  said:  "  There 
must  be  reasonable  evidence  of  negligence.  But  where  the  thing  is  shown  to 
be  under  the  management  of  the  defendant  or  his  servants,  and  the  accident 
is  such  as  in  the  ordinary  course  of  things  does  not  happen  if  those  who 
have  the  management  use  proper  care,  it  affords  reasonable  evidence,  in  the 
absence  of  explanation  by  the  defendants,  that  the  accident  arose  from  want 
of  care." 


Ch.  2)  LIABILITY   FOR   INJURY   TO    PASSENGERS.  343 

that  the  railroad  company  was  not  at  fault.  The  exception  of  this 
appellant  to  the  court's  charge  is  well  taken. 

As  to  the  appellant  the  Eighth  Avenue  Railroad  Company  a  differ- 
ent rule  obtains.  While  it  was  not  a  guarantor  of  the  safety  or  se- 
curity of  its  passengers,  it  was  bound  to  exercise  a  very  high  degree 
of  care  to  accomplish  that  result.  It  is  easy  to  imagine  many  in- 
juries that  might  occur  to  passengers,  from  which  no  presumption 
of  negligence  would  arise.  But  the  danger  of  collision  with  other 
vehicles  moving  on  the  street  is  always  present,  and  the  employe 
managing  and  controlling  the  car  must  be  on  the  alert  to  avoid  that 
danger.  The  danger  is  greater  at  the  intersection  of  other  railroads, 
and  care  must  there  be  used  proportionate  to  the  danger. 

As  was  said  by  the  court  below,  the  Eighth  Avenue  Railroad  Com- 
pany could  not  insist  upon  or  assert  its  right  of  way  at  the  crossing 
as  against  the  car  of  the  other  company,  if  there  were  reasonable 
grounds  to  apprehend  that  thereby  it  would  endanger  the  safety  of  its 
passengers.  The  management  and  control  of  the  transportation  of  the 
passenger  is  wholly  confided  to  the  employes  operating  the  car ;  and 
the  former  cannot  be  expected  to  be  on  the  watch  either  as  to  its 
management  or  that  of  other  vehicles,  or,  if  a  collision  takes  place, 
be  able  to  account  for  its  occurrence.  Therefore,  when  such  a  colli- 
sion occurs,  there  arises  a  presumption  of  negligence  on  the  part  of 
the  carrier,  which  calls  upon  it  for  explanation.  The  exception  of  the 
Eighth  Avenue  Railroad  Company  to  the  instruction  of  the  court  on 
this  subject  is  not  well  taken. 

But,  though  the  occurrence  of  the  accident  called  for  an  explana- 
tion by  this  defendant,  we  think  the  trial  court  erred  in  charging,  as  a 
matter  of  law,  that  no  explanation  had  been  furnished.  We  have  al- 
ready referred  to  the  fact  that  the  cable  car  struck  the  rear  end  of  the 
horse  car.  How  far  this  circumstance  tended  to  show  that  the  horse 
car  had  properly  and  carefully  proceeded  over  the  crossing  and  that 
the  collision  was  due,  not  to  its  fault,  but  to  that  of  the  other  defend- 
ant, was  a  question  of  fact  for  the  jury,  not  of  law  for  the  court. 

While  an  exception  was  not  taken  to  the  charge  of  the  court,  the 
question  was  raised  when  the  court  refused  to  charge  the  request, 
"If  either  the  conclusion  of  the  negligence  of  the  Eighth  Avenue  Rail- 
road Company,  or  the  absence  of  negligence  on  its  part,  may,  with 
equal  fairness,  be  drawn,  then  the  Eighth  Avenue  Railroad  Company 
cannot  be  recovered  against,"  to  which  the  defendant  excepted.  This 
refusal  was  consistent  with  the  court's  previous  ruling  that,  as  matter 
of  law,  the  presumption  of  negligence  had  not  been  overcome.  In 
our  view,  however,  it  was  erroneous;  for,  even  though  the  accident 
created  a  presumption  of  negligence  on  the  part  of  the  defendant 
the  Eighth  Avenue  Railroad  Company,  still,  if  there  was  any  evidence 
to  rebut  the  presumption,  the  burden  of  proof  rested  on  the  plaintiff 
(Whitlatch  V.  Casualty  Co.,  149  N.  Y.  45,  43  N.  E.  405);   and  if,  on 


344  EXCErXIONAL    LIABILITY    OF    COMMON   CARRIER.  (Part    4 

the  whole  case,  the  conckision  of  negHgence  or  absence  of  negligence 
could  be  drawn  with  equal  fairness,  that  burden  was  not  discharged. 
Cordell  v.  Railroad  Co.,  75  N.  Y.  330.     *     *     * 

The  judgment  should  be  reversed,  and  a  new  trial  granted;  costs  to 
abide  the  event.^^ 

J  2  See  cases  on  this  subject  collected  and  commented  upon  in  68  L.   R. 
A.  799,  809,  note. 


Ch.  3)  CASES  NOT  WITHIN  THE  RULE.  345 


CHAPTER  III 

CASES  NOT  WITHIN  THE  RULE  OF  EXCEPTIONAL 
LIABILITY  IN  THE  CARRIAGE  OF  GOODS 


SECTION  L— ACT  OF  GOD 


AMIES  V.  STEVENS. 

(Court  of  King's  Bench,  1718.     1  Str.  127.) 

The  plaintiff  puts  goods  on  board  the  defendant's  hoy,  who  was  a 
common  carrier.  Coming  through  bridge,  by  a  sudden  gust  of  wind 
the  hoy  sunk,  and  the  goods  were  spoiled.  The  plaintiff  insisted  that 
the  defendant  should  be  liable,  it  being  his  carelessness  in  going 
through  at  such  a  time,  and  offered  some  evidence  that,  if  the  hoy  had 
been  in  good  order,  it  would  not  have  sunk  with  the  stroke  it  received, 
and  from  thence  inferred  the  defendant  answerable  for  all  accidents, 
which  would  not  have  happened  to  the  goods  in  case  they  had  been 
put  into  a  better  hoy.  But  the  Chief  Justice  held  the  defendant  not 
answerable,  the  damage  being  occasioned  by  the  act  of  God.  For 
though  the  defendant  ought  not  to  have  ventured  to  shoot  the  bridge, 
if  the  general  bent  of  the  weather  had  been  tempestuous  ;  yet  this  being 
only  a  sudden  gust  of  wind,  had  entirely  differed  the  case:  and  no- 
carrier  is  obliged  to  have  a  new  carriage  for  every  journey:  It  is 
sufficient  if  he  provides  one  which  without  any  extraordinary  accident 
(such  as  this  was)  will  probably  perform  the  journey.^ 

1  The  following  cases  illustrate  causes  of  loss  which  may  fall  within  the 
class  called  acts  of  God: 

Earthquake.— Slater  v.  So.  Car.  R.  R.  Co..  29  S.  C.  Ofi.  G  S.  B.  936  (1888), 
washout  caused  bv  giving  wav  of  dam  in  Charleston  earthquake  of  1886. 

Flood.— Railroad  Company  v.  Reeves.  10  Wall.  176.  19  L.  Fa\.  909  (1869), 
unprecedented  freshet:  Gillespie  v.  St.  Louis,  etc..  R.  Co..  6  Mo.  App.  .554 
(1879).  washout  caused  by  heavy  rain :  Pearce  v.  The  Thomas  Newton  (D. 
C.)  41  Fed.  106  (1889),  high  tide,  though  excee<led  twice  in  previous  40  years, 
caused  hy  storm  ;  Long  v.  Pa.  R.  Co..  147  Pa.  .343.  23  Atl.  4.-j9.  14  L.  R.  A. 
741.  30  Am.  St.  Rep.  732  (1892),  Johnstown  flood,  caused  by  heavy  rain  burst- 
ing dam;  International,  etc.,  R.  Co.  v.  Bergman  (Tex.  Civ.  App.)  64  S.  W. 
999  (1901).  Galveston  flood. 

Violence  of  Wind  or  Waves. — Blythe  v.  Denver  &  R.  G.  R,  Co..  1.5  Colo. 
a33.  25  Pac.  702.  11  L.  R.  A.  615.  22  Am.  St.  Rep.  403  (1890),  railroad  car 
overturned  by  wind;  Hart  v.  Allen.  2  Watts  (Pa.)  114  (1&3.3).  boat  upset  by 
squall:  The  Calvin  S.  Etlwards,  50  Fed.  477,  1  C.  C.  A.  533  (1892),  severe 
gale  at  sea,  starting  leaks  in  an  old  schooner  such  as  to  justify  her  crew  iu 
abandoning  her. 

But  damage  caused  to  cargo  by  the  rolling  of  the  vessel  in  a  storm  not  of 
exceptional  severity  is  not  due  to  act  of  God,  though  inevitable.    The  Reeside, 


346  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

FRIEND  V.  WOODS. 

(Supreme  Court  of  Appeals  of  Virginia,  1849.     G  Grat.  ISO.  52  Am.  Dec.  119.) 

Daniel,  J.2  *  *  *  j^  j^  contended  by  the  plaintiffs  in  error 
that  the  evidence  offered  by  them  in  the  court  below  tended  to  show 
that  the  loss  sustained  by  the  plaintiff  was  occasioned  by  such  an  ex- 
traordinary peril  as  negatived  all  legal  inference  of  negligence  on  the 
part  of  the  carrier,  and  made  the  loss  referable  to  the  act  of  God, 
and  that  the  instruction  given  by  the  court  at  the  instance  of  the  plain- 
tiff' was  erroneous  and  prejudicial  to  them. 

It  appears  from  the  bill  of  exceptions  that  the  plaintiff,  having 
proved  that  he  delivered  at  the  Kanawha  Salines,  in  the  county  of 
Kanawha,  on  board  of  a  steamboat  in  the  charge  of  the  defendants, 
who  were  the  owners  thereof,  and  common  carriers,  a  quantity  of 
salt,  to  be  carried  on  the  said  boat  to  Nashville,  in  the  state  of  Ten- 
nessee, for  the  transportation  of  which  the  defendants  were  to  receive 
a  stipulated  freight  per  barrel,  and  that  the  said  boat  freighted  with 
said  salt  proceeded  on  her  voyage  as  far  as  to  the  confluence  of  the 
Elk  river  with  the  Kanawha,  when  she  stranded,  sprung  a  leak,  and 
filled  with  water,  whereby  a  portion  of  the  salt  was  wholly  lost,  and 
the  balance  much  damaged  and  impaired  in  value ;  and  the  defend- 
ants having  then  introduced  evidence  tending  to  prove  that  the  water 
in  the  river  was  in  good  navigable  condition,  that  the  boat  was  con- 
ducted through  the  ordinary  channel  for  steamboat  navigation,  that 
some  eight  or  ten  days  before  the  boat  proceeded  on  her  voyage  there 
was  a  rise  of  Elk  river,  a  tributary  of  the  Kanawha,  and  the  ice  gorg- 
ed at  its  mouth,  and  a  bar  of  sand  and  gravel  formed  in  the  channel 
along  which  the  boat  had  to  pass,  and  that  the  officers  and  crew  of 
the  boat  were  ignorant  of  the  formation  of  the  bar  when  the  boat 
stranded  upon  it,  and  that  the  officers  and  crew  used  their  eft'orts  to 
save  the  salt  after  the  boat  had  so  stranded,  the  plaintiff  moved  the 

2  Sumn.  .567,  Fed.  Cas.  No.  11,675  (1&37).  Here  Story,  ,T.,  said:  "It  seems  to 
me  tliat  the  weather  was  not  worse  than  what  must  ordinarily  be  expected 
to  be  encountered  in  such  a  voyage,  and  the  rolling  of  the  vessel  in  a  cross 
sea  is  an  ordinary  incident  to  every  voyage  upon  the  sea."  See,  also.  The 
Dutchess  of  Ulster,  Fed.  Cas.  No.  14,0S7a  (1851).  And  where  a  tug  came  to  a 
stop  because  her  intended  pier  was  temporarily  occupied,  and  her  tow  was 
carried  against  her  by  waves  and  tide  not  extraordinary  in  character,  it  was 
held  that  the  accident,  though  without  negligence,  was  not  to  be  attributed 
to  the  act  of  God.  Oakley  v.  Portsmouth,  etc.,  Co.,  11  Ex.  618  (1856).  So, 
also,  where  the  current  of  a  river  carries  a  boat  ashore.  Craig  v.  Childress, 
Peck  (Tenn.)  270,  19  Am.  Dec.  751  (1823).  But  cf.  Nugent  v.  Smith,  L.  K.  1 
C.  P.  D.  423,  43.5-438  (1876).  And  when  a  vessel  was  tacking  near  rocks  a 
sudden  failure  of  wind  which  prevented  her  coming  about,  so  that  she  went 
on  the  rocks,  was  held  to  excuse  the  carrier.  Colt  v.  Mc^NIechen,  6  Johns. 
(N.  Y.)  160,  5  Am.  Dec.  200  (1810). 

Blockade  by  Snow  of  cattle  train  causing  cattle  to  freeze :  Black  v.  C,  B. 
&  Q.  R.  Co.,  30  Neb.  197,  46  N.  W.  428  (1890) ;  .Tones  v.  Minneapolis,  etc.,  R. 
Co.,  91  Minn.  229,  97  N.  W.  893,  103  Am.  St.  Rep.  507  (1904). 

2  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  347 

court  to  instruct  the  jury  upon  the  law  governing  the  case.  Where- 
upon the  court  instructed  the  jury  that  if  they  beheved  from  the  evi- 
dence that  the  boat  was  stranded  by  running  upon  a  bar  preznoiisly 
formed  in  the  ordinary  channel  of  the  river,  htit  that  the  existence  of 
the  bar  might  by  human  foresight  and  diligence  have  been  ascertained 
and  avoided,  although  the  navigators  or  those  in  charge  of  the  boat 
were  ignorant  of  its  existence  at  the  time  the  boat  ran  upon  it,  the 
defendants  were  liable  for  the  loss  (if  any)  of  the  salt  freighted  by 
them  on  the  boat  occasioned  by  its  stranding;  although  the  jury  might 
be  satisfied  that  the  defendants,  after  the  boat  stranded,  used  all  the 
means  within  their  power  and  control  to  preserve  the  freight  on  board 
the  boat  from  being  lost  or  injured. 

Among  the  strongest  authorities  cited  in  behalf  of  the  plaintiffs 
in  error  are  the  cases  of  Smyrl  v.  Niolon,  2  Bailey  (S.  C.)  421,  23 
Am.  Dec.  146,  and  Williams  v.  Grant,  1  Conn.  487,"  7  Am,  Dec.  235. 
In  the  former  it  was  held  that  a  loss  occasioned  by  a  boat's  running 
on  an  unknown  "snag"  in  the  usual  channel  of  the  river  is  referable 
to  the  act  of  God,  and  that  the  carrier  will  be  excused;  and  in  the 
latter  it  was  said  that  striking  upon  a  rock  in  the  sea  not  generally 
known  to  navigators,  and  actually  not  known  to  the  master  of  the 
ship,  is  the  act  of  God.     *     *     * 

The  cases  in  which  the  carriers  have  been  exonerated  from  losses 
occasioned  by  such  obstructions  as  Smyrl  v.  Niolon,  and  Williams  v. 
Grant,  before  mentioned,  will,  I  think,  upon  examination,  be  found  to 
be  cases  in  which  either  the  bills  of  lading  contained  the  exception 
"of  the  perils  of  the  river,"  or  in  which  that  exception  has  been  con- 
founded with  the  exception  of  the  "act  of  God."  In  the  case  of  INIc- 
Arthur  v.  Sears  [21  Wend.  (N.  Y.)  19G]  a  distinction  between  the 
two  phrases  is  pointed  out.  It  is  shown  that  the  exception  "of  dan- 
gers or  perils  of  the  sea  or  river,"  often  contained  in  bills  of  lading, 
are  of  much  broader  compass  than  the  words  "act  of  God";  and  the 
case  of  Gordon  v.  Buchanan,  5  Yerg.  (Tenn.)  71,  is  cited  with  appro- 
bation, in  which  it  is  said  that  "many  of  the  disasters  which  would 
not  come  within  the  definition  of  the  act  of  God  would  fall  within  the 
former  exception ;  such,  for  instance,  as  losses  occasioned  by  hidden 
obstructions  in  the  river  newly  placed  there,  and  of  a  character  that 
human  skill  and  foresight  could  not  have  discovered  and  avoided." 

In  a  note  to  the  case  of  Coggs  v.  Bernard,  in  the  American  edition 
of  Smith's  Leading  Cases,  43  Law  Lib.  180,  the  American  decisions 
are  collated  and  reviewed,  and  a  definition  is  given  to  the  expression 
"act  of  God,"  which  expresses,  I  think,  with  precision,  its  true  mean- 
ing. The  true  notion  of  the  exception  is  there  held  to  be  "those  loss- 
es that  are  occasioned  exclusively  by  the  violence  of  nature,  by  that 
kind  of  force  of  the  elements  which  human  ability  could  not  have 
foreseen  or  prevented,  such  as  lightning,  tornadoes,  sudden  squalls 
of  wind."  "The  principle  that  all  human  agency  is  to  be  excluded 
from  creating  or  entering  into  the  cause  of  mischief,  in  order  that  it 


^48  EXCEPTIONAL   LIABILITY   OP   COMMON  CARRIER.  (Part   4 

may  be  deemed  the  act  of  God,  shuts  out  those  cases  where  the  nat- 
ural object  in  question  is  made  a  cause  of  mischief,  solely  by  the  act 
of  the  captain  in  bringing  his  vessel  into  that  particular  position  where 
alone  that  natural  object  could  cause  mischief:  rocks,  shoals,  currents, 
etc.,  are  not,  by  their  own  nature  and  inherently,  agents  of  mischief 
and  causes  of  danger,  as  tempests,  lightning,  etc.,  are." 

The  act  of  God  which  excuses  the  carrier  must  therefore,  I  think,. 
be  a  direct  and  violent  act  of  nature. 

The  rule,  it  is  insisted,  is  a  harsh  one  upon  the  carrier,  and  it  is 
argued  that  the  court  should  be  slow  to  extend  it  further  than  it  is 
fully  sustained  by  the  cases.  However  harsh  the  rule  may  at  first 
appear  to  be,  it  has  been  long  established,  and  is  well  founded  on 
maxims  of  public  policy  and  convenience ;  and,  viewing  the  carrier 
in  the  light  of  an  insurer,  it  is  of  the  utmost  importance  to  him,  as 
well  as  to  the  public  who  deal  with  him,  that  the  acts  for  which  he 
is  to  be  excused  should  have  a  plain  and  well-defined  meaning.  When 
it  is  understood  that  no  act  is  within  the  exception,  except  such  a  vio- 
lent act  of  nature  as  implies  the  entire  exclusion  of  all  human  agency, 
the  liabilities  of  the  carrier  are  plainly  marked  out,  and  a  standard  is 
fixed  by  which  the  extent  of  the  compensation  to  indemnify  him  for 
his  risks  can  be  readily  measured  and  ascertained.  The  rule,  too, 
when  so  understood,  puts  to  rest  many  perplexing  questions  of  fact, 
in  the  litigation  of  which  the  advantage  is  always  on  the  side  of  the- 
carrier.  Under  this  rule  the  carrier  is  not  permitted  to  go  into  proofs 
of  care  or  diligence,  and  the  owner  of  the  goods  is  not  required  to 
adduce  evidence  of  negligence  till  the  loss  in  question  is  shown  to  be 
the  immediate  result  of  an  extraordinary  convulsion  of  nature,  or  of 
a  direct  visitation  of  the  elements,  against  which  the  aids  of  science 
and  skill  are  of  no  avail. 

So  understanding  the  law,  I  do  not  perceive  how  the  defendants 
in  error  could  have  been  prejudiced  by  the  instruction  complained  of, 
and  am  of  opinion  to  affirm  the  judgment. 

Judgment  affirmed.^ 

3  It  does  not  suffice  to  relieve  a  carrier  that  the  loss  occurred  without  his 
fault,  and  from  one  of  the  following  causes: 

Fire,  which  originates  in  a  cause  not  beyond  human  control,  though  it  has 
developed  into  a  conflagration  beyond  human  power  to  extinguish.  Miller  v. 
Steam  Navigation  Companv,  10  N.  Y.  431  (1853) ;  Merchants'  Dispatch  Co. 
V.  Smith,  76  111.  542  (1875),  Chicago  fire. 

ElxPLOSiON  of  a  box  of  detonators,  part  of  vessel's  cargo,  tearing  a  hole  in 
the  ship's  side  and  letting  in  water.  The  G.  li.  Booth,  171  U.  S.  450.  10  Sup. 
Ct.  9,  43  L.  Ed.  234    (1898). 

Collision  between  ships  at  sea,  at  night.  Plaisted  v.  Boston  &  Kennebec 
St.  Nav.  Co.  27  Me.  132,  46  Am.  Dec.  587  (1847).  Running  into  floating 
wreckage  at  sea.  The  Majestic,  60  Fed.  624,  9  C.  C.  A.  161,  23  L.  R.  A.  746 
{1894),  semble. 

Stranding. — Running  on  a  shoal  in  fog.  Liver  Alkali  Co.  v.  Johnson,  L. 
R.  9  Ex.  338  (1874).  Running  on  a  hidden  rock  whose  existence  is  generally 
known.  Fergusson  v.  Brent,  12  Md.  9,  71  Am.  Dec.  582  (18.58).  Running  on  a 
snag  in  a  river,  where  there  is  room  to  pass  safely,  at  least  if  its  presence  is 


Ch.  3)  CASES  NOT   WITHIN  THE    RULE.  3i9 


NEW  BRUNSWICK  STEAMBOAT  CO.  v.  TIERS. 

(Court  of  Errors  aud  Appeals  of  New  Jersey,  1S53.     24  N.  J.  Law,  697, 
64  Am.  Dec.  394.) 

Elmer,  J.*  *  *  *  The  action  was  against  common  carriers,  as 
such,  and  it  is  admitted  that  the  plaintiffs  made  out  a  prima  facie  case, 
entithng  them  to  recover,  unless  the  defendants  succeeded  in  excus- 
ing themselves,  by  evidence  offered  on  their  part.  The  goods  were 
on  board  the  defendants'  barge,  called  the  Albany,  which  may  be  as- 
sumed to  have  been  in  all  respects  a  good  and  sufficient  vessel,  suitable 
for  the  business  in  which  she  was  employed.  They  were  received  by 
the  defendants'  agents,  without  objection,  and  put  on  board  some  time 
during  the  16th  day  of  November,  1841,  while  she  lay  at  the  bulk- 
head of  their  dock  in  the  North  River,  at  New  York.  On  the  previ- 
ous day,  a  severe  gale  commenced  from  the  northwest,  which  in- 
creased during  the  16th  to  a  violent  storm,  and  produced  an  unusual 
low  tide,  so  that  in  the  evening  of  that  day  the  barge  was  driven  by 
the  wind  against  a  piece  of  timber  which  projected  from  the  bulk- 
head, 13  feet  below  the  top  of  the  dock,  and  much  below  the  ordinary 
low  water,  the  existence  of  which  was  unknown  to  the  defendants' 
agents  and  servants.  A  hole  was  by  this  timber  knocked  through 
her  side,  so  that  in  a  short  time  the  barge  filled  with  water  and  sunk, 
and  the  goods  were  spoiled.     *     *     * 

The  argument  for  the  defendants  in  this  case  is  that  inasmuch  as 
if  there  had  not  been  an  unusually  low  tide,  produced  by  a  violent 
storm  of  wind,  the  barge  would  not  have  struck  the  timber,  therefore 
the  loss  must  be  attributed  to  the  storm.  But  if  that  argument  was 
sound,  it  would  follow  that,  if  an  unseaworthy  vessel  should  founder 
in  a  storm,  the  fact  that  she  might  have  gone  safe  if  the  weather  had 
remained  fair  would  excuse  the  carrier.  This  is  not  pretended  to  be 
the  law.  If  the  vessel  be  in  fact  unfit  for  her  business,  a  loss  arising 
from  a  storm  is  presumed  to  have  been  occasioned  by  the  defect  of 
the  vessel,  because  it  is  impossible  to  say  how  far  the  defect  contrib- 

known  to  others.  Steele  v.  McTyer's  Adiu.,  31  Ala.  GOT,  70  Am.  Dec.  .516 
(18.58).  Contra:  Smvrl  v.  Niolon,  2  Bailey  (S.  C.)  421,  23  Am.  Dec.  146  (1831) ; 
Faulkner  v.  Wright.  Rice  (S.  C.)  107  (1838).  Cf.  Peunewill  v.  Culleu,  D  Har. 
<Del.)  238  (1S49) ;    Bohannan  v.  Hammond,  42  Cal.  227  (1871). 

Sweating,  or  the  collection  of  moisture  on  the  sides  of  a  ship's  hold.  Bax- 
ter V.  Leland,  1  Abb.  Adm.  .348.  Fed.  Cas.  No.  1.124  (1848). 

Rolling  of  Ship,  causing  bilge  water  to  wet  cargo.  Crosby  v.  Grinnell, 
Fed.  Cas.  No.  3,422  (1851). 

Rats,  gnawing  hole  in  vessel,  which  lets  in  water.  Dale  v.  Hall,  1  Wils. 
281  (17.50) :  Pandorf  v.  Hamilton,  17  Q.  R.  D.  670  (1886) ;  The  Euripides.  71 
Fed.  728  (1896).  Rats  eating  cargo.  Laveroui  v.  Drury,  8  Ex.  166  (1852) ; 
Kay  V.  Wheeler,  L.  R.  2  C.  P.  302  (1867). 

Cockroaches,  eating  cargo.  The  Miletus,  5  Blatchf.  335,  Fed.  Cas.  No. 
9,.545  (1866). 

*  The  statement  of  facts  and  parts  of  the  opinion  are  omitted.  Haines,  J., 
delivered  a  concurring  opinion. 


350  EXCErXIOXAL   LIABILITY   OF   COMMON  CARRIER.  (Part    4 

uted  to  the  lo$s.  Upon  the  hke  principle,  if  the  carrier's  dock  be  im- 
perfect, a  loss  arising  by  the  influence  of  a  storm  acting  upon  the 
imperfection,  and  which  would  not  have  happened  in  the  absence  of 
either  cause,  must  be  attributed  to  the  imperfection.  The  loss  is  not 
by  an  act  of  God  alone;  it  is  produced  partly  by  an  act  for  which  the 
carrier  is  responsible.  Had  there  been  no  storm,  but  had  the  dock 
itself  given  way  and  sunk  the  vessel,  or  had  a  projecting  timber  before 
unnoticed,  or  believed  not  to  be  dangerous,  occasioned  the  injury, 
since  no  act  that  could  be  called  the  act  of  God  had  intervened,  it  is 
undeniable  that  the  carriers  would  be  liable.  In  this  case,  an  act  of 
God  did  intervene,  and  was  instrumental  in  producing  the  loss ;  but 
it  was  not  the  sole  or  proximate  cause  of  the  loss.  The  defendants 
themselves  insist  and  assume,  in  the  charge  they  desire,  that  the  storm 
itself  did  not  do  the  injury.  Had  not  another  instrument  concurred, 
which  proceeded  from  the  active  or  passive  agency  of  man,  and  for 
which  man  is  responsible,  there  would  have  been  no  loss. 

In  the  case  of  Trent  Nav.  Co.  v.  Wood  [ante,  p.  317]  the  carrier's 
vessel  sank  by  driving  against  a  concealed  anchor  in  the  river,  which 
belonged  to  another  vessel,  to  which  no  buoy  was  attached,  as  there 
ought  to  have  been.  The  plaintiffs  recovered,  and  although  it  seems 
to  have  been  considered  that  there  was  some  negligence  on  the  part 
of  the  master,  it  appears  from  the  remarks  of  the  judges,  whose  opin- 
ions are  but  shortly  reported,  that  it  was  held  that  this  loss  was  oc- 
casioned, partly  by  the  act  of  man,  and  came  within  the  principle  of  a 
loss  by  robbery,  for  which  the  carrier  was  responsible,  whether  in 
fault  or  not. 

A  later  case  of  Smith  v.  Shepherd,  Abbott  on  Ship.  pt.  3,  c.  4,  §  1, 
was  a  case  where  the  loss  happened  at  the  entrance  of  the  harbor  of 
Hull.  There  had  formerly  been  a  shelving  bank,  which  was  rendered 
precipitous  by  a  recent  flood,  and  a  vessel  had  sunk  there  which  had  a 
floating  mast  tied  to  her.  The  defendant's  vessel  struck  this  mast, 
and  was  thereby  forced  on  the  bank,  and  in  consequence  of  the  change 
that  had  taken  place  by  means  of  the  flood,  the  loss  occurred.  Evi- 
dence offered  to  show  that  there  had  been  no  actual  negligence  was 
overruled,  and  it  was  held  that  the  loss  having  been  in  part  produced 
by  the  floating  mast  which  was  placed  there  by  human  agency,  the 
fact  that  the  act  of  God  in  changing  the  bank  was  also  instrumental, 
could  not  be  considered  as  making  that  act  the  immediate  cause  of  the 
loss,  and  therefore  formed  no  excuse. 

In  the  case  of  Camden  &  Ambcy  Co.  v.  Burke,  13  Wend.  (X.  Y.) 
611,  28  Am.  Dec.  488,  baggage  of  one  of  the  passengers,  the  trans- 
portation of  which  was  paid  for,  was  injured  by  the  breaking  of  a 
rope,  by  means  of  which  it  was  being  hoisted  from  the  steamboat  to 
the  wharf  at  Bordentown,  and  it  was  held  that  the  company  were 
answerable  as  common  carriers,  although  the  defect  was  unknown 
to  their  agents  and  was  not  discoverable  on  inspection,  and  the  loss 
happened   without   any  culpable   negligence   or   want   of   care.      The 


Ch.  3)  CASES  NOT   WITHIN   THE    RULE.  '    351 

same  principle  was  decided  in  the  case  of  De  Mott  v.  Laraway,  14 
Wend.  (N.  Y.)  225,  28  Am.  Dec.  523. 

On  behalf  of  the  defendants,  the  now  plaintiffs  in  error,  much  re- 
liance has  been  placed  on  the  case  of  Amies  v.  Stevens,  shortly  re- 
ported as  follows:  [The  learned  judge  here  quoted  from  the  report 
of  that  case,  ante,  p.  345.]  *  *  *  jt  having  been  held  as  a  matter 
of  fact,  that  the  hoy  was  in  proper  order  and  fit  for  the  business  in 
which  it  was  employed,  this  case  decides  that  a  sudden  gust  of  wind 
which  sunk  it  while  in  the  act  of  passing  through  a  bridge,  against 
which,  as  it  would  seem,  the  wind  drove  it,  was  to  be  regarded  as  an 
act  of  God,  for  which  the  carrier  was  not  responsible,  and  there  can 
be  no  doubt  of  the  correctness  of  the  decision.  It  being  necessary 
for  the  hoy  to  pass  through  the  bridge  to  make  the  contemplated 
voyage,  if  a  proper  time  was  taken  to  do  it,  a  sudden  storm  driving 
it  against  the  bridge,  was  just  as  clearly  the  proximate  cause  of  the 
loss  as  a  sudden  storm  at  sea  which  should  drive  a  ship  upon  a  rock. 

The  application  of  it  to  the  present  case,  which  counsel  seek  to 
make,  is  that  the  bridge  being  the  work  of  man,  there  was  here  the 
intervention  of  human  agency,  and  that  the  striking  of  the  hoy  against 
it  was  therefore  as  much  the  immediate  or  proximate  cause  of  the 
loss,  as  the  striking  of  the  barge,  in  the  case  before  us,  against  the 
timber  projecting  out  of  the  bulkhead.  Had  there  been  no  negligence 
on  the  part  of  the  defendants  in  this  case,  and  a  sudden  storm  had 
driven  their  barge  against  a  properly  constructed  bulkhead,  and  thus 
occasioned  the  loss,  the  cases  would  have  been  alike.  But  the  defend- 
ants, admitting  such  negligence  as  if  the  damage  had  been  occasioned 
by  the  vessel  being  driven  against  the  bulkhead  where  it  was  perfect, 
would  have  rendered  them  liable,  insist  that  the  loss  did  not  thus  hap- 
pen, but  that  it  happened  by  the  storm  driving  out  the  water  from  the 
dock,  and  thus  bringing  the  vessel  into  contact  with  a  timber  not  other- 
wise dangerous.  There  is  a  plain  distinction  between  an  injury  caused 
by  a  sudden  gust  of  wind  driving  a  vessel  against  a  bridge,  or  bulkhead, 
or  other  erection,  which  although  the  work  of  man,  is  properly  placed 
and  built  for  the  public  benefit,  and  one  which  is  occasioned  by  the 
same  gust  driving  her  against  something  which  is  there  by  the  fault 
or  at  the  risk  of  the  owner  of  the  vessel  or  of  a  third  person.  In  the 
former  case,  the  injury  is  to  be  attributed,  so  far  as  regards  the  ques- 
tion who  is  responsible  for  it,  solely  to  the  gust  of  wind — the  act  of 
God ;  while  in  the  latter  there  is  the  intervention  of  an  act  of  man, 
which  concurs  in  producing  it,  and  against  which  the  carriers  under- 
take to  insure. 

It  is,  however,  urged  for  the  defendants  that  this  was  a  public  dock, 
over  which  they  had  no  control,  but  which  belonged  to  the  city  of 
New  York,  and  was  regulated  by  the  public  authorities  thereof;  and 
also  that  if  they  are  to  be  held  responsible  for  its  efficiency,  it  ought 
not  to  be  taken  for  granted  that  the  projecting  timber  was  of  such  a 
character  as  to  be  considered  a  defect,  for  the  consequences  of  which 


.'>o2  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

they  are  to  suffer.  Whether  it  was  a  pubHc  or  private  dock,  it  seems 
to  me,  can  make  no  difference.  When  the  defendants  rented  it,  or 
obtained  leave  from  the  city  to  use  it  for  the  purposes  of  their  private 
business,  it  became  as  much  their  private  property,  so  far  as  persons 
transacting  business  with  them  were  concerned,  as  if  they  had  owned 
it.  That  a  timber  projecting  nearly  a  foot  from  the  face  of  the  bulk- 
.  head,  and  capable  of  making  a  hole  through  a  well  built  vessel  at  one 
blow,  as  defendants  say  this  did,  was  a  defect,  even  although  it  was 
below  the  ordinary  low  water  mark  and  not  capable  of  doing  injury 
at  common  tides,  seems  to  me  too  obvious  to  be  a  subject  of  doubt. 

[The  learned  judge  then  argued  that  the  carrier  was  negligent  in 
leaving  the  barge  in  an  exposed  situation  during  the  storm,  that  the 
evidence  would  not  warrant  a  finding  that  this  negligence  did  not 
contribute  to  the  loss,  and  that  consequently  the  carrier  had  not  shown 
that  the  loss  was  due  to  those  circumstances  which  he  relied  on  as  re- 
heving  him  from  liability,  rather  than  to  his  own  proved  neglect.] 
Judgment  for  plaintiffs  affirmed.^ 

5  A  vessel  was  lying  at  a  pier  in  Albany,  when  from  an  unexplained  cause 
a  fire  broke  out  in  the  city  a  quarter  of  a  mile  away.  About  an  hour  later  a 
sudden  gale  arose,  caiTied  burning  fragments  of  wood  to  a  great  distance  in 
the  direction  of  the  vessel,  and  caused  an  extensive  conflagration,  which  in  a 
few  minutes  reached  and  destroyed  her,  with  her  cargo.  It  was  held  that, 
though  the  gale  was  an  act  of  God  and  brought  the  fire  irresistibly  to  the 
vessel,  the  carrier  was  liable  for  the  loss.  Parsons  v.  Monteath,  13  Barb.  (N. 
Y.)  3.5.3  (18.51) ;    Miller  v.  Steam  Nav.  Co.,  10  N.  Y.  431  (1853). 

A  railroad  express  car  was  overturned  by  a  gale.  It  caught  fire  from  a 
lighted  stove  in  the  car,  and  its  contents  were  consumed.  The  carrier  was 
excused.  Blythe  v.  Denver  &  R.  G.  R.  Co.,  15  Colo.  333,  25  Pac.  702,  11  L.  R. 
A.  615.  22  Am.  St.  Rep.  403  (1890). 

A  fire  burned  in  the  woods  near  a  town  for  several  days,  hut  had  been  so 
far  subdued  that  no  especial  anxiety  was  felt.  A  tornado  drove  the  fire  toward 
the  town,  and  in  spite  of  all  efforts  the  town  was  burned,  together  with 
loaded  cars  at  a  railroad  station.  The  carrier  was  excused.  Pennsylvania  R. 
R.  Co.  V.  Fries,  87  Pa.  234  (1878). 

A  sloop  was  sunk  in  the  Hudson  river  in  a  squall.  Less  than  three  days 
afterward,  a  steamboat,  carrying  horses,  ran  at  night  without  negligence 
upon  her  mast,  which  was  a  few  feet  above  water,  and  the  horses  were 
drowned.  The  carrier  was  held  liable.  Merritt  v.  Earle,  29  N.  Y.  115,  Sti 
Am.  Dec.  202  (1804). 

A  train  was  derailed  by  a  washout  caused  shortly  before  by  the  overflow 
of  a  neighboring  sheet  of  water  because  of  an  extraordinary  fall  of  rain. 
The  carrier  was  excused.  Gillespie  v.  St.  Louis,  etc.,  R.  Co.,  6  Mo.  App.  554 
<1879). 

A  train  was  wrecked  by  the  sliding  of  earth  upon  the  track  from  the  side 
of  a  cutting,  by  reason  of  the  fact  that  it  had  been  loosened  by  a  rainfall  not 
exceptional  in  character.  The  carrier  was  held  liable.  Gleeson  v.  Va.  Mid- 
land Ry.,  140  U.  S.  435,  11  Sup.  Ct.  &59,  35  L.  Ed.  4.58  (1891). 

In  Central  of  Georgia  Railway  (3o.  v.  Hall,  124  Ga.  322,  52  S.  E.  679,  4  L. 
R.  A.  (N.  S.)  898,  110  Am.  St.  Rep.  170  (1905),  a  car  was  wrecked  by  the  en- 
gineer's fanning  the  engine  against  it  at  high  si)^ed.  It- was  contended  that 
the  engineer  had  suddenly  gone  insane.  Lumpkin,  J.,  said:  "Suppose  that, 
instead  of  having  killed  the  horse  by  the  collision,  the  engineer  had  stolen 
the  horse ;  would  it  be  contended  that,  by  showing  insanity  on  his  part,  the 
taking  became  the  act  of  God?  *  *  *  Sudden  death,  or  sickness  of  such 
a  character  as  to  render  action  impossible,  may  sometimes  excuse  nonaction. 
But  tortious  action  does  not  become  the  act  of  God  because  the  person  acting 
may  be  sick." 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  353 


MORRISON  V.  McFADDEN. 

(District  Court  of  Alleghany  County,  Pennsylvania,  1850.     3  Am.  Law 
J.  [N.  S.]  462.) 

This  was  an  action  of  assumpsit  on  a  bill  of  lading-  for  damage 
done  to  goods  delivered  by  the  plaintiff  to  the  defendant,  to  be  car- 
ried by  the  Pennsylvania  Canal.  The  bill  of  lading  was  dated  October 
1,  1847.  After  the  goods  were  started  on  the  way,  and  when  they 
were  on  the  Juniata  portion  of  the  canal,  October  7th,  there  came  a 
great  storm  of  rain,  which  lasted  near  two  days  and  caused  an  un- 
precedented rise  in  the  waters  of  the  Juniata.  When  the  defendant's 
boat  arrived  at  Piper's  dam,  it  was  considered  unsafe  to  attempt  to 
cross.  The  crew,  therefore,  lay  up  on  the  level  below  the  dam,  and 
fastened  their  boat  to  a  canal  bridge  immediately  below  the  dam.  The 
water  continued  rising  until  about  midnight,  when  Piper's  dam  gave 
way,  and  shortly  afterwards  the  bridge  to  which  the  boat  was  fas- 
tened was  carried  off,  and  the  boat  with  it.  Some  of  the  goods  were 
recovered,  but  in  a  damaged  condition. 

It  appeared  by  the  evidence  that  the  defendant's  boat  had  two 
horses,  and  that  one  of  them  was  lame  when  they  started,  and  that 
by  reason  of  this  the  defendant's  boat  had  lost  eight  or  ten  hours'  time, 
and  that,  had  it  not  been  for  this,  the  boat  would  have  arrived  at 
Piper's  dam  early  enough  to  be  able  to  cross  it,  and  then  the  accident 
would  have  been  avoided. 

LowRiE,  J.  [charging  the  jury].«  *  *  *  jf  ^he  loss  in  the  pres- 
ent instance  arose  from  an  extraordinary  flood  and  the  consequent 
breaking  of  a  canal  dam,  and  this  was  the  sole  cause  of  the  loss,  and 
if  in  the  difficulties  in  which  they  were  placed  there  was  no  want  of 
diligence  and  skill  on  the  part  of  the  crew,  the  carrier  is  excused. 

That  this  was  an  extraordinary  flood,  and  that  it  caused  the  break- 
ing of  the  dam,  is  admitted.  The  next  thing  to  be  ascertained  is 
whether  or  not  this  was  the  sole  cause  of  the  loss.  On  this  part  of 
the  case  the  plaintiff  insists  that  the  negligence  of  the  defendant  in 
having  a  lame  horse  in  his  team,  whereby  the  boat  was  so  detained  as 
to  fall  into  the  danger,  and  whereby  the  movements  of  the  crew  were 
embarrassed  after  they  fell  into  the  danger,  was  one  of  the  causes  of 
the  accident.     *     *     * 

Supposing  that  the  lameness  of  the  horse  caused  the  delay  by  which 
the  boat  was  brought  into  a  position  which  by  the  concurrence  of  an 
extraordinary  flood  became  fatal ;  what  effect  has  this  upon  the  excuse 
offered  by  the  carrier  ?  In  this  question  it  is  assumed  that  the  proxi- 
mate cause  of  the  disaster  was  the  flood,  and  that  the  fault  of  the  car- 
rier in  having  a  lame  horse  was  a  remote  cause;  that  the  immediate 
cause  of  the  loss  has  the  character  of  an  inevitable  accident,  but  that 

6  Parts  of  the  charge  to  the  jury  are  omitted. 
Green  Cabb. — 23 


354  EXCEPTIOXAL   LIABILITY   OF   COMMON  CARRIER.  (Part    4 

this  cause  could  not  have  operated  so  as  to  affect  the  defendant  had  it 
not  been  for  the  remote  fault  of  starting  on  his  voyage  with  insuffi- 
cient horse  power.  The  question  then  is:  Does  the  law  transfer  this 
fault  so  as  to  make  the  delay  consequent  upon  it  an  element  in  testing 
the  inevitableness  of  the  disaster  at  Piper's  dam?  If  it  does,  the  de- 
fendant is  without  excuse. 

In  any  other  than  a  carrier  case,  this  question  would  be  at  once  de- 
cided in  the  negative ;  for  the  general  rule  is  that  a  man  is  answerable 
for  the  consequences  of  a  fault  only  so  far  as  the  same  are  natural 
and  proximate,  and  on  this  account  may  be  foreseen  by  ordinary  fore- 
sight, and  not  for  those  which  arise  from  a  conjuncture  of  his  fault 
with  other  circumstances  that  are  extraordinary  in  their  character. 

Thus,  if  a  blacksmith  pricks  a  horse  by  careless  shoeing,  ordinary 
foresight  might  anticipate  lameness  and  some  days  or  weeks  of  un- 
fitness for  use.  But  it  could  not  anticipate  that  by  reason  of  that  lame- 
ness the  horse  would  be  delayed  in  passing  through  a  forest  until  a 
tree  fell  and  killed  him,  or  broke  his  owner's  back,  and  this  would 
be  no  proper  measure  of  the  blacksmith's  liability.     *     *     * 

Now  there  is  nothing  in  the  policy  of  the  law  relating  to  common 
carriers  that  calls  for  any  different  rule  as  to  the  consequential  dam- 
age to  be  applied  to  them.  They  are  answerable  for  the  ordinary  and 
proximate  consequences  of  their  negligence,  and  not  for  those  which 
are  remote  and  extraordinary.     *     *     * 

Where  a  carrier  is  guilty  of  delay  in  transporting  goods,  his  lia- 
bility is  to  pay  for  the  delay.  This  liability  is  not  changed  by  the 
subsequent  destruction  of  the  goods  by  reason  of  extraordinary  cir- 
cumstances within  the  influence  of  which  they  were  brought  by  that 
delay.  The  discovery  of  new  and  remote  consequences  does  not 
change  the  liability  which  attached  with  the  happening  of  the  fault. 
The  law  does  not  make  this  delay  an  element  in  testing  the  inevitable- 
ness of  the  final  disaster.  Parsons  v.  Hardy,  l-k  Wend.  (N.  Y.)  215, 
28  Am.  Dec.  521. 

These  principles  allow  us  to  proceed  at  once  to  the  consideration 
of  the  actual  disaster.  It  may,  perhaps,  be  assumed  that  the  defend- 
ant's boat  properly  lay  up  for  the  night  on  the  level  below  Piper's 
dam,  and  we  are  to  examine  what  degree  of  care  was  required  of  them 
there,  with  the  storm  upon  them  and  the  river  rising  rapidly. 

The  law  requires  of  the  carrier,  under  such  circumstances,  ordinary 
care,  skill,  and  foresight.  This  is  usually  defined  as  the  common 
prudence  which  men  of  business  and  heads  of  families  usually  exhibit 
in  matters  that  are  interesting  to  them.  Of  course  this  care  is  in- 
creased as  difficulties  increase.  In  other  words,  in  great  danger,  great 
care  is  the  ordinary  care  of  prudent  men. 

Did  the  defendant  exercise  ordinary  care  in  stopping  so  near  to 
Piper's  dam?  We  should  guard  against  that  ex  post  facto  wisdom 
which  some  of  the  witnesses  have  so  abundantly  displayed.  After 
seeing  how  the  storm  had  operated,  the  defendant's  hands  were  per- 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  355 

haps  as  wise  as  the  witnesses.  We  are  seeking  to  learn  whether,  by 
ordinary  forecast,  the  defendant  could  have  foreseen  the  accident 
and  the  means  of  avoiding  it. 

Many  witnesses  testify  that  it  is  usual  for  boats  to  stop  at  that  very 
spot  and  to  fasten  to  that  very  bridge  in  time  of  high  water.  This  is 
evidence  of  ordinary  care. 

None  question  the  safety  of  the  boat  in  that  position,  had  Piper's 
dam  not  given  way.  This  would  seem  to  be  conclusive  evidence  of 
proper  prudence  in  the  selection  of  the  place  to  lie  in,  unless  there 
was  a  want  of  proper  foresight  as  to  the  height  of  the  flood  and  the 
strength  of  Piper's  dam. 

Did  ordinary  foresight  demand  an  anticipation  of  this  unprecedented 
flood  and  of  the  breaking  of  the  dam?  We  should  be  careful  to  dis- 
tinguish between  ordinary  foresight  and  a  timid  apprehension  of 
approaching  danger.  This  latter  quality  is  incompatible  with  the  cool 
courage  and  experienced  forecast  of  a  good  boatman,  and  would  uniit 
him  for  the  practical  duties  of  his  calling. 

We  can  scarcely  expect  a  greater  foresight  of  the  impending  flood 
from  boatmen  on  the  canal  than  we  should  from  the  inhabitants  who 
have  lived  a  lifetime  in  that  locality,  and  crowds  of  witnesses  testify 
that  it  was  entirely  unexpected  by  the  inhabitants. 

The  dam  was  erected  by  the  state,  under  the  direction  of  skillful 
engineers.  It  had  either  withstood  the  flood  of  1839,  or  been  built 
under  the  guidance  of  the  experience  derived  from  that  flood.  It 
would  seem  to  be  a  timid  apprehension,  or  an  extraordinary  foresight, 
that  would  anticipate  its  destruction,  and  neither  of  these  was  demand- 
ed of  the  defendant.  If,  up  to  this  point  of  time,  you  discover  no 
want  of  care,  then  you  will  consider  the  circumstances  immediately 
after  the  dam  gave  way.  And  if  in  any  part  of  that  eventful  evening 
you  discover  any  negligence  on  the  part  of  the  defendant's  crew, 
other  than  the  delay  before  spoken  of,  that  contributed  to  the  disas- 
ter, you  will  find  for  the  plaintift'  the  value  of  his  goods.  If  other- 
wise, you  will  find  for  the  defendant. 

Verdict  for  the  defendant.'^ 

7  .ludgment  afBrmed  as  to  cnunts  here  discussed,  but  reversed  on  another 
point.  Morrison  v.  Davis.  20  I'a.  171.  57  Am.  Dee.  G95  (lS.o2).  Compare  the 
following  passaffe  from  the  opinion  of  McClain.  C.  J.,  in  Green-Wheeler  Shoe 
Co.  V.  Chicago.  R.  I.  &  P.  Ry.  Co.,  130  Iowa,  123,  106  N.  W.  498,  5  L.  R. 
A.  (N.  S.)  882  (1906):  "Now.  while  it  is  true  that  defendant  could  not  have 
anticipated  this  particular  flood,  and  could  not  have  foreseen  that  its  neg- 
ligent delay  in  transportation  would  subject  the  goods  to  such  a  danger,  yet 
It  is  now  apparent  that  such  delay  did  subject  the  goods  to  the  danger,  and 
that  but  for  the  delay  they  would  not  have  been  destroyed;  and  defendant 
should  have  foreseen,  \as  any  reasonable  person  could  foresee,  that  the  negli- 
gent delay  would  extend  the  time  during  which  the  goods  would  be  liable  in 
the  hands  of  the  carrier  to  be  overtaken  by  some  such  casualty,  and  would 
therefore  increase  the  peril  that  the  goods  should  be  thus  lost  to  the  shipi>er. 
This  consideration  that  the  peril  of  accidental  destruction  is  enhanced  by  the 
negligent  extension  of  time  during  which  the  goods  must  remain  in  the  car- 
rier's control  and  out  of  the  control  of  the  owner,  and  during  which  some 


356  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

SECTION  2.— ACT  OF  THE  PUBLIC  ENEMY 


BLAND  V.  ADAMS  EXPRESS  CO. 

(Court  of  Appeals  of  Kentucky,  1SG4.     1  Duv.  232,  85  Am.  Dec.  G23.) 

Robertson,  J.  To  a  petition  by  Arthur  Bland  against  the  "Adams 
Express  Company,"  charging  the  nondeUvery,  according  to  consign- 
ment, of  a  package  containing  $3,279,  confided  by  him,  at  the  city  of 
Louisville  on  the  10th  day  of  May,  1862,  to  said  company,  as  a  com- 
mon carrier,  to  carry  from  said  city  to  his  consignee  at  the  city  of 
Nashville,  it  filed  an  answer  alleging  that  its  agent  forthwith  placed 
the  said  package  with  all  its  said  contents  in  its  iron  safe  on  the  rail- 
road train  then  departing  from  Louisville  to  Nashville ;  that,  on  the 
same  day,  John  Morgan  and  his  band  of  Confederate  soldiers,  on  the 
way,  near  Cave  City,  attacked  the  train,  burnt  most  of  the  cars,  and, 
by  irresistible  armed  force,  robbed  the  safe  of  the  said  package  and 
all  its  contents;    and  that  no  portion  of  the  money  so  abstracted  had 

casualty  may  overtake  them,  has  not,  we  think,  been  given  sufficient  con- 
sideration in  the  cases  in  which  the  carrier  has  heen  held  not  responsible 
for  a  loss  for  which  he  is  not  primarily  liable,  but  which  has  overtaken  the 
goods  as  a  consequence  of  the  preceding  delay  in  their  transportation."  Com- 
pare, also.  Read  v.  Spaulding,  ante,  p.  64.  and  cases  cited  in  notes  thereto. 

In  Nugent  v.  Smith.  L.  R.  1  C.  P.  D.  423,  437  (1876),  Cockburn,  C.  J.,  said: 
"In  other  words,  all  that  can  be  required  of  the  carrier  is  that  he  shall  do 
all  that  is  reasonably  and  practically  possible  to  insure  the  safety  of  the 
goods.  If  he  uses  all  the  known  means  to  which  prudent  and  experienced 
carriers  ordinarily  have  recourse,  he  does  all  that  can  reasonably  be  required 
of  him;  and.  if,  under  such  circumstances,  he  is  overpowered  by  storm  or 
other  natural  agency,  he  is  within  the  rule  which  gives  immunity  from  the  ef- 
fects of  such  vis  major  as  the  act  of  God.  *  *  *  j  find  no  authority  for 
saying  that  the  vis  major  must  be  such  as  no  amount  of  human  ability  could 
have  prevented,  and  I  think  this  construction  of  the  rule  erroneous." 

Where  the  loss  is  directly  caused  by  a  happening  of  the  class  called  act  of 
God.  and  the  carrier  has  used  the  care  of  a  reasonably  prudent  man,  it  does 
not  suffice  to  render  him  liable  that  he  might  have  avoided  it  by  a  degree  of 
care  not  inconsistent  with  the  practical  conduct  of  his  business.  Gillespie  v. 
St.  Louis,  etc.,  Ry.  Co.,  6  Mo.  App.  554  (1879) ;  Southern  Pacific  Co.  v.  Schuy- 
ler. 135  Fed.  1015,  68  C.  C.  A.  409  (1905). 

AMiere  a  track  is  washed  away  by  a  flood  so  violent  that  it  would  have 
washed  away  the  strongest  track,  the  railroad  is  not  made  liable  by  the  fact 
that  its  track  was  so  built  that  it  would  have  been  washed  out  by  a  storm 
not  of  exceptional  violence.    Gillespie  v.  St.  Louis,  etc.,  Ry.  Co.,  supra. 

If  the  carrier's  failure  to  exercise  due  care  contributes  to  the  loss,  he  la 
-liable,  although  the  immediate  cause  was  an  act  of  God;  Dibble  v.  Morgan, 
1  Woods,  406,  Fed.  Cas.  No.  3,881  (1873),  goods  abandoned  in  hurricane ;  Wa- 
bash, etc.,  R.  Co.  v.  Sharpe,  76  Neb.  424.  107  N.  W.  758,  124  Am.  St.  Rep.  823 
(1906).  failure  to  observe  warning  of  Weather  Bureau.  If  the  evidence  is 
evenly  balanced  as  to  whether  the  carrier  exercised  due  care,  authorities 
conflict  as  to  who  is  entitled  to  the  verdict.  See  6  Cyc.  521 ;  Carriers,  9  Cent. 
Dig.  §  579,  Dec.  Dig.  §  132. 


/ 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  357 

been  rescued  or  restored.  These  facts  having  been  sufficiently  proved, 
the  circuit  judge,  to  whom  the  law  and  the  facts  were  submitted,  dis- 
missed the  petition.  And  this  appeal  seeks  the  reversal  of  that  judg- 
ment. 

Public  policy,  and  consequently  the  law,  holds  common  carriers  to 
a  peculiar  responsibility,  extremely  stringent,  admitting  no  excuse  for 
the  loss  of  goods  except  an  act  of  God  or  of  a  public  enemy,  which 
could  not,  by  any  proper  care  or  available  force,  have  been  overcome 
or  averted.  No  other  human  force  than  that  of  a  public  enemy  will 
exonerate  the  carrier,  because,  otherwise,  he  might  fraudulently  mus- 
ter or  combine  with  a  force  to  rob  himself. 

The  only  question  in  this  case  is :  Was  Morgan's  band,  in  the 
technical  sense,  a  public  enemy?  And  the  answer  depends  on  whether 
the  strife  in  which  they  were  fighting  is  a  civil  war.  War  is  either 
international  or  civil,  foreign  or  domestic.  Insurrection,  however 
violent  or  formidable,  is  not  war.  Civil  war  is  preceded  by  insurrec- 
tion, which  becomes  magnified  and  matured  into  war  in  the  legitimate 
sense.  And  when  so  characterized,  the  parties  are  belligerents,  and 
respectively  entitled  to  belligerent  rights.  The  American  Revolution 
of  1776  commenced  in  insurrection.  But  the  insurgent  colonies  soon 
became  belligerent  states.  By  the  Declaration  of  Independence  civil 
war  was  inaugurated,  as  often  and  authoritatively  recognized  and 
adjudged.  After  that  transforming  event,  the  American  resistance 
was  rebellion  no  longer,  but  war  for  liberty.  The  struggle  in  which 
the  United  States  are  now  engaged  against  the  seceding  states,  is 
more  stupendous  and  quite  as  eventful.  It  is  to  save  that  which  the 
war  of  independence  achieved.  And  history  records  no  civil  war 
more  flagrant  or  gigantic  than  that  in  which  our  country  is  now  en- 
gaged. If  this  be  not  war,  what  is  war,  and  when  or  where  did  it  ever 
rage  and  desolate  and  destroy?  It  has  been  so  treated  at  home  and 
abroad — by  our  own  government  in  all  its  departments,  as  well  as  by 
foreign  governments;  and  if  it  be  war  now,  it  was  as  certainly  war, 
and  as  much  war,  on  the  10th  of  May,  1862. 

Wherefore  the  judgment  is  affirmed.* 

s  See.  also.  Morse  v.  Slue,  ante,  p.  313. 

^^■hen  goods  in  the  hands  of  a  carrier  were  seized  by  Confederate  forces 
within  territory  over  which  the  Confederacy  had  established  and  was  main- 
taining an  actual  government,  the  carrier,  at  least  if  his  domicile  and  route 
lay  within  such  territory,  could  not,  even  in  a  Union  court,  maintain  the  de- 
fense of  a  taking  by  public  enemy.  Nashville,  etc.,  R.  Co.  v.  Estes,  7  Heisk. 
(Tenn.)  622,  24  Am.  Rep.  289  (1872) ;  Patterson  v.  North  Carolina  R.  Co.,  64 
N.  C.  Ii7  (1S70). 

On  the  other  hand,  hostile  acts  of  the  Union  forces  in  Confederate  territory 
were  acts  of  a  public  enemy.  Southern  E.x;press  Co.  v.  Womack,  1  Heisk. 
(Tenn )  256  (1870).  Cf.  Seligmau  v.  Armijo.  1  N.  M.  459  (1870) ;  Spaids  v. 
N.  Y.  Mail  S.  S.  Co..  3  Daly  (N.  Y.)  139  (18<!9) :  Railway  Co.  v.  Nevill,  60  Ark. 
375.  30  S.  W.  425,  28  L.  R.  A.  80,  4G  Am.  St.  Rep.  208  (1895). 

In  Holladay  v.  Kennard.  12  Wall.  2.54.  20  L.  Ed.  390  (1870),  it  was  held  that 
a  common  carrier  was  not  liable  for  the  acts  of  a  band  of  tribal  Indians  en- 
gaged in  hostilities  during  the  War  of  the  Confederacy. 

The  Marshal's  Case,  Y.  B.  33  Hen.  VI,  1,  pi.  3  (145.5),  printed  in  Beale's 


358  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

SECTION  3.— QUALITY  OF  THE  THING  CARRIED 


EVANS  V.  FITCHBURG  R.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1872.     Ill  Mass.  142,  15  Am. 

Rep.  19.) 

Tort  against  common  carriers  to  recover  for  injuries  to  the  plain- 
tiff's horse.  At  the  trial  in  the  superior  court  before  Rockwell,  J.,  the 
plaintiff  offered  evidence  that  he  delivered  to  the  defendants  to  be  car- 
ried on  their  road  two  horses,  which  were  kept  and  used  as  a  span; 
that  he  saw  them  placed  and  fastened  by  their  halters  at  the  end  of  a 
car  in  separate  corners ;  that  when  the  horses  arrived  they  were  in 
the  same  position,  but  one  was  seriously  injured  on  his  hind  legs,  and 
his  halter  rope  was  hitched  so  tightly  around  his  lower  jaw  as  evi- 
dently to  have  caused  him  pain ;  that  the  injuries  were  caused  by 
kicks  from  the  other  horse ;  and  that  the  horses  had  been  previously 
kind  and  well-behaved.     *     *     * 

Cases  on  Carriers,  was  an  action  against  the  marshal  of  the  King's  Bench 
for  the  escape  of  a  prisoner  committed  under  a  judgment  in  favor  of  the  plain- 
tiff. It  was  pleaded  that  enemies  of  the  king  broke  open  the  prison  and  car- 
ried off  the  prisoner  against  the  marshal's  will,  but  without  stating  who  or  of 
what  country  they  were. 

"Choke:  If  enemies  from  France  or  other  enemies  of  the  king  were  here, 
the  marshal  would  be  discharged ;  as  if  they  had  burned  a  house  of  a  tenant 
for  life,  he  should  be  discharged  of  waste ;  or  otherwise  if  the  house  were 
burned  by  a  sudden  tempest,  then  he  would  be  discharged ;    so  here. 

"Danby,  J.  In  your  case  of  the  king's  enemies  and  of  the  sudden  tempest 
it  is  right ;  for  then  there  was  no  remedy  against  any  one ;  but  it  is  other- 
wise where  subjects  of  the  king  do  it ;  for  there  you  may  have  action  against 
them. 

"Choke:    Sir,  the  captain  is  dead,  and  all  the  others  are  unknown. 

"Prisot,  C.  J.  If  they  were  subjects  of  the  king,  they  could  not  be  called 
enemies  of  the  king,  but  traitors ;  for  enemies  are  those  who  are  out  of  his 
allegiance;  but  if  they  were  alien  enemies  it  would  be  a  good  plea  without 
any  doubt.  But  if  there  were  twelve  or  twenty  subjects  of  the  king,  and  un- 
known, and  one  night  they  broke  open  the  prison  and  took  them  out,  etc.,  in 
that  case  the  marshal  shall  be  charged  for  his  negligent  guard ;  so  here. 
But  if  it  were  by  a  sudden  accident  with  fire,  and  the  prison  were  burned, 
and  they  escaped,  perhaps  it  is  otherwise.     *     *     * 

"Choke:  Then  we  say  that  there  were  4,000  Scots  and  other  enemies  of  the 
king  with  the  other  traitors,  etc. 

"Danbt,  J.  Then  you  ought  to  allege  the  matter  more  specially,  and  some 
of  their  names.     Et  adjournatur." 

In  Marsden's  Select  Pleas  in  the  Court  of  Admiralty  (Selden  Society),  it 
appears  that  in  l.">Tl-72  two  cases  were  decided  in  the  Court  of  Admiralty  in- 
volving the  liability  of  a  carrier  over  sea  for  loss  by  robbery.  In  one,  a  de- 
fense of  capture  by  pirates  was  held  good.  Guallerotti  c.  Utwicke,  vol.  2,  p. 
Ixx.  In  the  other,  a  suit  against  the  master  of  a  ship  for  failure  to  deliver 
400  ducats  intrusted  to  him  for  carriage,  a  defense  that  the  ship  was  wrecked 
by  tempest  and  pillaged  by  wreckers  was  held  bad.  Bodacar  c.  Block,  vol.  2, 
p.  146. 


Ch.  3)  CASES  NOT   WITHIN  THE    RULE.  359 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendants 
alleged  exceptions.^ 

Ames,  J.  According  to  the  established  rule  as  to  the  liability  of 
a  common  carrier,  he  is  understood  to  guarantee  that  (with  the  well- 
known  exception  of  the  act  of  God  and  of  public  enemies)  the  goods 
intrusted  to  him  shall  seasonably  reach  their  destination,  and  that  they 
shall  receive  no  injury  from  the  manner  in  which  their  transportation 
is  accomplished.  But  he  is  not,  necessarily  and  under  all  circumstan- 
ces, responsible  for  the  condition  in  which  they  may  be  found  upon 
their  arrival.  The  ordinary  and  natural  decay  of  fruit,  vegetables, 
and  other  perishable  articles ;  the  fermentation,  evaporation,  or  una- 
voidable leakage  of  liquids ;  the  spontaneous  combustion  of  some 
kinds  of  goods — are  matters  to  which  the  implied  obligation  of  the 
carrier,  as  an  insurer,  does  not  extend.  Story  on  Bailments,  ■§§  492a, 
576.  He  is  liable  for  all  accidents  and  mismanagement  incident  to  the 
transportation  and  to  the  means  and  appliances  by  which  it  is  effect- 
ed ;^°  but  not  for  injuries  produced  by,  or  resulting  from,  the  inherent 
defects  or  essential  qualities  of  the  articles  which  he  undertakes  to 
transport.  The  extent  of  his  duty  in  this  respect  is  to  take  all  reason- 
able care  and  use  all  proper  precautions  to  prevent  siich  injuries,  or 
to  diminish  their  effect,  as  far  as  he  can ;  but  his  liability,  in  such 
cases,  is  by  no  means  that  of  an  insurer. 

Upon  receiving  these  horses  for  transportation,  without  any  special 
contract  limiting  their  liability,  the  defendants  incurred  the  general 
obligation  of  common  carriers.^ ^  They  thereby  became  responsible 
for  the  safe  treatment  of  the  animals,  from  the  moment  they  received 
them  until  the  carriages  in  which  they  were  conveyed  were  unloaded. 
Moffat  V.  Great  Western  Railway  Co.,  15  Law  T.  (N.  S.)  630.  They 
would   be    unconditionally   liable   for   all   injuries   occasioned   by    the 

9  Part  of  the  statement  of  facts  is  omitted. 

10  "There  may  have  been  an  accidental  jerlj  at  a  curve  of  the  line,  or  a 
jolt  of  the  train  by  sudden  stoppage;  or,  on  the  other  hand,  possibly  (though 
there  is  no  evidence  of  it)  the  animal  may  have  been  the  cause  of  its  own  in- 
juries bv  some  intrinsic  properties  of  its  own  nature."  Tigott,  B.,  iu  Kendall 
V.  London  &  S.  W.  Ry.  Co.,  L.  R.  7  Ex.  373  (1872). 

11  Ace.  Rixford  v.  Smith,  52  N.  H.  3.5.5,  13  Am.  Rep.  425  (1872).  Contra: 
Heller  v.  Chicago,  etc.,  R.  Co.,  109  Mich.  53,  GG  N.  W.  GG7,  63  Am.  St.  Rep. 
541  (ISDC). 

In  Boyce  v.  Anderson,  2  Pet.  1.50,  7  L.  Ed.  370  (1829),  it  was  held  that  the 
exceptional  liability  of  a  common  carrier  does  not  exist  in  the  carriage  of 
slaves.  Marshall,  C.  .T.,  said:  "A  slave  has  volition,  and  has  feelings  which 
cannot  be  entirely  disregarded.  These  properties  cannot  be  overlooked,  in 
conveying  him  from  place  to  place.  He  cannot  be  stowed  away  as  a  common 
package.  Not  only  does  humanity  forbid  this  proceeding,  but  it  might  endan- 
ger his  life  or  health.  Consequently,  this  rigorous  mode  of  proceeding  cannot 
safely  be  adopted  unless  stipulated  for  by  special  contract.  Being  left  at 
liberty,  he  may  escape.  The  carrier  has  not,  and  cannot  have,  the  same  con- 
trol over  him  that  he  has  over  inanimate  matter.  In  the  nature  of  things, 
and  in  his  character,  he  resembles  a  passenger,  not  a  package  of  goods.  It 
would  seem  reasonable,  therefore,  that  the  resix)nsibility  of  the  carrier  should 
be  measured  by  the  law  which  is  applicable  to  passengers,  rather  than  by 
that  which  is  applicable  to  the  carriage  of  common  goods." 


300  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER,  (Part    4 

improper  construction  or  unsafe  condition  of  the  carriage  in  which 
the  horses  were  conveyed,  or  by  its  improper  position  in  the  train, 
or  by  the  want  of  reasonable  equipment,  or  by  any  mismanagement, 
or  want  of  due  care,  or  by  any  other  accident  (not  within  the  well- 
known  exception)  affecting  either  the  train  generally  or  that  partic- 
ular carriage.  But  the  transportation  of  horses  and  other  domestic 
animals  is  not  subject  to  precisely  the  same  rules  as  that  of  pack- 
ages and  inanimate  chattels.  Living  animals  have  excitabilities  and 
volitions  of  their  own  which  greatly  increase  the  risks  and  difficulties 
of  management.  They  are  carried  in  a  mode  entirely  opposed  to  their 
instincts  and  habits ;  they  may  be  made  uncontrollable  by  fright,  or, 
notwithstanding  every  precaution,  may  destroy  themselves  in  attempt- 
ing to  break  loose,  or  may  kill  each  other. 

If  the  injury  in  this  case  was  produced  by  the  fright,  restiveness, 
or  viciousness  of  the  animals,  and  if  the  defendants  exercised  all  prop- 
er care  and  foresight  to  prevent  it,  it  would  be  unreasonable  to  hold 
them  responsible  for  the  loss.  Clarke  v.  Rochester  &  Syracuse  Rail- 
road Co.,  14  N.  Y.  570,  67  Am.  Dec.  205.  Thus  it  has  been  held  that 
if  horses  or  other  animals  are  transported  by  water,  and  in  conse- 
quence of  a  storm  they  break  down  the  partition  between  them,  and  by 
kicking  each  other  some  of  them  are  killed,  the  carrier  will  not  be  held 
responsible.  Laurence  v.  Aberdein,  5  B.  &  Aid.  107;  Story  on  Bail- 
ments, §  576 ;  Angell  on  Carriers,  214a.  The  carrier  of  cattle  is  not 
responsible  for  injuries  resulting  from  their  viciousness  of  disposition, 
and  the  question  what  was  the  cause  of  the  injury  is  one  of  fact  for 
the  jury.  Hall  v.  Renfro,  3  Mete.  (Ky.)  51.  And  in  a  New  York 
case,  Conger  v.  Hudson  River  Railroad  Co.  [post,  p.  374,  at  377],  Mr. 
Justice  Woodruff  says,  in  behalf  of  the  court :  "We  are  not  able  to  per- 
ceive any  reason  upon  which  the  shrinkage  of  the  plaintiff's  cattle,  their 
disposition  to  become  restive,  and  their  trampling  upon  each  other  when 
some  of  them  lie  down  from  fatigue,  is  not  to  be  deemed  an  injury 
arising  from  the  nature  and  inherent  character  of  the  property  carried, 
as  truly  as  if  the  property  had  been  of  any  description  of  perishable 
goods." 

It  appears  to  us,  therefore,  that  the  first  instruction  which  the  de- 
fendants requested  the  court  to  give  should  have  been  given.  If  the 
jury  found  that  the  defendants  provided  a  suitable  car,  and  took  all 
proper  and  reasonable  precautions  to  prevent  the  occurrence  of  such  an 
accident,  and  that  the  damage  was  caused  by  the  kicking  of  one  horse 
by  another,  the  defendants  were  entitled  to  a  verdict.  That  is  to  say, 
they  might  be  held  to  great  vigilance,  foresight,  and  care,  but  they 
were  not  absolutely  liable  as  insurers  against  injuries  of  that  kind. 
As  there  was  evidence  also  tending  to  show  that  the  halter  was  at- 
tached by  the  plaintiff  to  the  jaw  of  one  of  the  horses  in  a  manner 
which  might  cause  or  increase  restiveness  and  bad  temper,  and  also 
evidence  that  their  shoes  were  not  taken  off,  the  defendants  were  en- 
titled to  the  instruction  that  if  the  injuries  were  caused  by  the  fault 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  3G1 

or  neglect  of  the  plaintiff  in  these  particulars,  he  could  not  recover. 
This  court  has  recently  decided  that  for  unavoidable  injuries  done  by 
cattle  to  themselves  or  each  other,  in  their  passage,  the  common  car- 
rier is  not  liable.  Smith  v.  New  Haven  &  Northampton  Railroad  Co.,. 
12  Allen,  531,  90  Am.  Dec.  166.  This  is  another  mode  of  saying  that 
a  railroad  corporation,  in  undertaking  the  transportation  of  cattle, 
does  not  insure  their  safety  against  injuries  occasioned  by  their  vicious- 
ness  and  unruly  conduct.  Kendall  v.  London  &  Southwestern  Rail- 
way Co.,  L.  R.  7  Ex.  373.  The  jury  should  therefore  have  been  in- 
structed that  if  the  injury  happened  in  that  way,  and  if  the  defendants 
exercised  proper  care  and  foresight  in  placing  and  securing  the  horses 
while  under  their  charge,  they  are  not  to  be  held  liable  in  this  action. 
Upon  this  point  the  burden  of  proof  may  be  upon  the  defendants,  but 
they  should  have  been  permitted  to  go  to  the  jury  upon  the  question 
whether  there  had  been  reasonable  care  on  their  part. 

It  appears  to  us,  also,  that  the  instruction  actually  given  was  not 
a  full  equivalent  for  that  which  was  requested,  and  which,  as  we  have 
seen,  should  have  been  given.  It  was  not  necessary  to  the  defense  to 
show  that  the  injury  was  caused  in  "an  outburst  of  viciousness."  The 
proposition  should  have  been  stated  much  more  generally,  and  the 
jury  should  have  been  told  that  if  from  fright,  bad  temper,  viciousness, 
or  any  other  cause  without  fault  on  the  part  of  the  defendants,  the 
horses  became  refractory  and  unruly,  and  the  kicking  and  injury  were 
occasioned  in  that  manner,  it  was  an  unavoidable  accident,  for  which 
the  defendants  were  not  liable. 

Exceptions  sustained.^ ^ 

12  Ace.  Clarke  v.  Rochester,  etc.,  R.  Co.,  14  N.  Y.  541.  67  Am.  Dec.  205 
(1856) ;  111.  Cent.  R.  Co.  v.  Brelsford,  13  111.  App.  251  (1883) ;  Louisville,  etc., 
Ry.  Co.  V.  Bigger.  66  Miss.  319.  6  South.  234  (1889) ;  Nugent  v.  Smith,  L.  R. 
1  C.  P.  D.  423  (1876). 

In  Rixford  v.  Smith.  52  N.  H.  355.  13  Am.  Rep.  42  (1872).  Doe,  O.  J.,  said: 
"The  warranty  he  [the  shipper]  desires  is  of  the  safety  of  the  transportation, 
not  of  the  absolute  preservation  of  his  property  from  its  own  action." 

It  has  been  held  that  a  common  carrier  is  not  liable  for  loss  by  evapora- 
tion, though  exceptionally  great.  Janney  v.  Tudor  Co.  (D.  C)  3  Fed.  814 
n8S0^.  Nor  for  excessive  leaking  from  wooden  barrels  containing  lard, 
melted  by  hot  weather.  Nelson  v.  Woodruff,  1  Black.  156,  17  L.  Ed.  97  (1861). 
Nor  for  the  bursting  of  a  cask  of  molasses  by  fermentation  during  unloading. 
Faucher  v.  Wilson,  ante,  p.  37.  Nor  for  the  escape  of  a  bullock  from  a  car 
reasonably  secure.  Blower  v.  Gt.  W.  Ry.  Co..  L.  R.  7  C.  P.  655  (1872).  Nor 
for  the  escape  of  a  dog  by  slipping  a  collar,  apparently  sufficient,  which  he 
wore  when  delivered  to  the  carrier.  Richardson  v.  N.  E.  Ry.  Co.,  Ij.  R.  7  C.  P. 
75  (1872).  semble;  Kaplan  v.  Midland  R.  Co.  (Sup.)  88  N.  Y.  Supp.  945  (1904). 
Nor  for  the  burning  of  goods  on  fire  when  delivered.  Coweta  Countv  v.  Cen- 
tral, etc.,  R.  Co..  4  Ga.  App.  94.  60  S.  E.  1018  (1908).  Compare  Warden  v. 
Greer.  6  Watts  (Pa.)  424  (1837),  barrels  known  to  be  leaky  from  loss  of  hoops, 
accepted  by  carrier  and  not  recoopered. 


362  ExcErxioxAL  liability  of  common  carrieu.  (Part  4 

BEARD  V.  ST.  LOUIS,  A.  &  T.  H.  RY.  CO. 

(Supreme  Court  of  Iowa,  1890.     79  Iowa,  527,  44  N.  W.  803.) 

Action  to  recover  damages  for  injury  sustained,  through  negHgence 
of  defendant,  to  a  large  quantity  of  butter  shipped  by  plaintiffs  from 
West  Union,  Iowa,  to  New  Orleans,  La. ;  the  butter  being  carried  over 
a  part  of  the  route  by  defendant.  The  cause  was  tried  without  a  jury, 
and  judgment  was  entered  for  defendant.     Plaintiffs  appeal. 

Beck,  J.^^  *  *  *  Counsel  insist  that  the  evidence  shows  that 
it  was  vmderstood  that  the  butter  should  be  carried  through  from  St. 
Louis  to  New  Orleans  in  common  cars,  and  that  various  facts  appear- 
ing in  the  evidence  authorize  such  an  inference.  We  cannot  assent  to 
this  proposition.  It  may  be  admitted  that  the  evidence  shows  no  spe- 
cific agreement  for  any  specific  class  of  cars  entered  into  between  the 
transfer  company  and  defendant.  The  butter  was  delivered  to  defend- 
ant, and  nothing  said  about  the  character  of  the  cars  to  be  used  in  its 
transportation.  It  may  be  admitted  that  the  rate  of  charges  named  was 
the  rate  for  common  cars.  But  there  was  no  agreement  that  the  butter 
should  be  transported  in  such  cars,  and  that  due  care  should  not  be 
exercised  in  its  transportation  to  protect  it  from  injury  on  account  of 
the  heat.  The  carrier  was  bound  to  exercise  the  diligence  demanded  by 
law  for  the  safety  of  the  butter,  and  its  protection  from  injury.  It  was 
bound  to  use  the  degree  of  diligence  which  a  carrier  must  exercise  for 
the  safety  of  the  goods  he  carries.  It  was  bound  to  provide  refrigera- 
tor cars,  or  other  cars,  in  which  ice  could  be  and  should  be  used,  to 
protect  the  butter  from  the  heat ;  and  until  such  cars  could  be  provided 
it  was  required  to  put  the  butter  in  cold  storage.  See  Beard  v.  Railway 
Co.,  79  Iowa,  518,  44  N.  W.  800,  7  L.  R.  A.  280,  18  Am.  St.  Rep.  381. 

This  discussion  leads  us  to  the  conclusion  that  the  judgment  of  the 
superior  court  ought  to  be  reversed.^* 

13  Part  of  the  opinion  has  been  omitted. 

14  Ace.  Wing  V.  X.  Y.  &  Erie  R.  Co..  1  Hilt.  (X.  T.)  2,3.5  (1S.")6).  apples  frozen 
by  exposure  to  winter  weather ;  Kinuiclv  v.  Chicago,  etc.,  R.  Co.,  69  Iowa.  GO.'i. 
29  X.  W.  772  (1.886),  hogs  Icilled  by  crowding  together  near  doors  of  car,  whicli 
carrier  might  have  prevented :  Railroad  Co.  v.  Smisseu,  31  Tex.  Civ.  App. 
.^49.  73  S.  W.  42  (1903) ;  Loeser  v.  Railwav  Co..  94  Wis.  571.  69  X.  W.  372 
(1896) ;  Cash  v.  Wabash  R.  Co..  81  Mo.  App.  109  (1899).  Compare  Mo.  Pac. 
Ry.  Co.  v.  Fagan  (Tex.  Civ.  App.)  27  S.  W.  887  (1894).  mode  of  transportation 
ordinarily  proper  injured  mares  because,  without  carrier's  knowledge,  they 
were  with  foal. 

For  burden  of  proof  as  to  carrier's  fault  where  an  article  during  trans- 
portation receives  damage  of  a  kind  to  which  its  inherent  quality  renders  it 
susceptible,  see  Dow  v.  Portland  Steam  Packet  Co..  84  Me.  4W.  24  Atl.  945 
(1892) :  McCoy  v.  K.  &  D.  U.  R.  Co.,  44  Iowa,  424  (1876) ;  Zerega  v.  Poppe, 
Abb.  Adm.  397.  Fed.  Cas.  Xo.  18,213  (1849) ;  Hance  v.  Express  Co.,  48  Mo. 
App.  179  (1892). 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  363 

LISTER  V.  LANCASHIRE  &  Y.  RY.  CO. 

(High   Court  of  Justice,  King's  Bench  Division.     [1903]  1  K.  B.  878.) 

Appeal  from  the  Bradford  County  Court. 

The  plaintiff  employed  the  defendants  as  common  carriers  to  carry 
an  engine  from  his  yard  to  a  neighboring  town  on  their  line.  The 
engine  was  on  wheels  with  shafts  to  draw  it,  and  had  been  purchased 
by  the  plaintiff  secondhand  a  few  months  before.  The  defendants 
sent  two  men,  two  boys,  and  two  horses  for  the  purpose,  and  the  men 
and  boys  were  competent  and  the  horses  proper  for  the  purpose. 
The  horses  were  harnessed  to  the  engine,  which  was  drawn  out  of 
the  yard,  and  whilst  they  were  proceeding  along  the  road  one  of  the 
shafts  broke,  the  horses  took  fright,  became  unmanageable,  and  upset 
the  engine,  which  was  damaged  in  consequence.  The  shaft  was  rotten 
at  the  point  where  it  broke,  but  this  was  not  known  either  to  the  plain- 
tiff or  the  defendants,  and  could  not  have  been  discovered  by  any  or- 
dinary examination.  The  County  Court  judge  was  of  opinion  that 
the  rule  that  a  common  carrier  is  excused  from  liability  for  damage, 
if  it  be  caused  by  the  inherent  vice  of  the  thing  carried,  is  limited  to 
cases  in  which  the  inherent  vice  itself  directly  causes  the  damage  with- 
out any  contributory  act  done  by  the  carrier,  as  in  the  case  of  a  vicious 
animal  injuring  itself,  or  overripe  fruit  becoming  damaged  by  the 
pressure  of  its  own  weight ;  and  he  accordingly  held  that,  as  the  shaft 
would  not  have  broken  but  for  the  strain  put  upon  it  by  the  defend- 
ants' own  act,  its  defective  condition  afforded  no  excuse. 

The  defendants  appealed. 

Scott  Fox,  K.  C,  and  R.  Watson,  for  the  defendants.  The  limita- 
tion on  the  liability  of  a  common  carrier  is  laid  down  by  ]\Iellish,  L. 
J.,  in  Nugent  v.  Smith  (187G)  1  C.  P.  D.  423,  at  page  441,  thus:  "A 
carrier  does  not  insure  against  acts  of  nature,  and  does  not  insure 
against  defects  in  the  thing  carried  itself;  but  in  order  to  make  out  a 
defense  the  carrier  must  be  able  to  prove  that  either  cause  taken  sep- 
arately, or  both  taken  together,  formed  the  sole  and  direct  and  irre- 
sistible cause  of  the  loss."  The  County  Court  judge  thought  that  in 
order  to  establish  that  the  inherent  defect  was  the  "sole  and  direct" 
cause  of  the  loss  within  that  rule  it  was  necessary  to  show  that  the 
damage  would  equally  have  happened  if  the  thing  had  not  been 
carried  at  all.  •  Therein  he  was  wrong.  The  inherent  defect  remains 
the  sole  and  direct  cause,  notwithstanding  that  it  is  rendered  active  by 
the  act  of  the  carrier,  if  that  act  was  one  which  it  was  intended  by  the 
consignor  that  the  carrier  should  do,  or  which  it  was  reasonably  neces- 
sary that  the  carrier  should  do,  in  the  course  of  the  carriage.  The  self- 
inflicted  injury  of  a  restive  animal  or  the  damage  caused  to  overripe 
fruit  in  the  course  of  transit  by  railway  is  contributed  to  by  the  act 
of  the  carriers,  inasmuch  as  they  cause  the  noise  that  frightens  the 
animal  or  the  vibration  that  shakes  the  fruit  together;    but  the  noise 


3G4  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

and  vibration  are  reasonably  necessary  and  part  of  the  ordinary  inci- 
dents of  carriage,  and  for  that  reason  the  carriers  are  excused.  Here 
it  was  intended  that  the  defendants  should,  or  at  all  events  contem- 
plated that  they  would,  carry  the  engine  through  the  street  in  the  way 
in  which  they  did — by  harnessing  horses  to  the  shafts. 

Lord  Alverstone.  C.  J.  I  am  of  opinion  that  the  County  Court 
judge  has  put  a  limitation  upon  the  rule  which  is  not  justified  by  any 
authority.  It  must  be  taken  that  the  engine  was  being  conveyed  in 
the  ordinary  way  in  which  a  common  carrier  would  have  conveyed  it, 
and  therefore  no  point  can  be  made  as  to  there  being  a  possible  alter- 
native and  safer  mode  of  carriage.  It  may  be  that  if  there  is  no  evi- 
dence of  intention  by  the  parties  as  to  how  the  thing  is  to  be  carried, 
and  there  are  alternative  modes  of  carriage,  one  of  which  will  give 
play  to  an  inherent  defect  in  the  thing  carried  and  the  other  of  which 
will  not,  the  carrier  will  be  responsible  if  he  adopts  the  former  mode 
and  damage  results  therefrom,  unless  indeed  the  adoption  of  the  safer 
mode  would  involve  the  taking  of  precautions  which  it  would  be  alto- 
gether unreasonable  to  require  him  to  take.  But  that  is  not  the  case 
here.  It  is  obvious  that  all  parties  intended  that  the  engine  should  be 
taken  to  the  station  on  its  own  wheels.  The  County  Court  judge,  in 
thinking  that  the  rule  as  to  the  nonliability  of  a  common  carrier  for 
damage  caused  by  an  inherent  defect  in  the  thing  carried  was  limited 
to  cases  in  which  the  damage  would  equally  have  occurred  if  the  thing 
had  not  been  carried  at  all,  in  my  opinion  went  much  too  far.  When 
once  you  arrive  at  the  fact  that  the  thing  is  being  carried  in  the  ordi- 
nary way,  and  every  precaution  has  been  taken  consistent  with  that 
mode  of  carriage,  and  the  accident  happens  from  the  unfitness  of  the 
thing  for  that  mode  of  carriage,  the  carrier  is  not  responsible. 

Wills,  J.     I  am  of  the  same  opinion. 

Channell,  J.  I  agree.  I  think  the  proposition  may  be  stated  thus : 
The  inherent  unfitness  for  the  carriage  contemplated,  although  not 
known  to  either  party,  is  inherent  vice  within  the  meaning  of  the 
exception  that  has  been  established  by  the  decided  cases. 

Appeal  allowed. 


GILLESPIE  v.  THOMPSON. 

(Court  of  Queen's  Bench,  185G.     6  El.  &  Bl.  477,  note  b.) 

This  was  a  special  case,  in  which  the  only  question  was  whether  the 
defendant,  the  shipowner,  was  answerable  to  the  plaintiff,  the  shipper 
of  goods,  under  the  ordinary  bill  of  lading,  for  damage  sustained  by 
those  goods  in  consequence  of  the  leakage  of  turpentine  from  casks 
belonging  to  third  parties,  no  negligence  being  imputed  to  the  de- 
fendant. 

Joseph  Brown,  for  the  plaintiff,  was  not  called  upon  to  argue. 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  365 

Manisty,  for  the  defendant,  admitted  he  could  not  support  the  de- 
fense. 

Per  Curiam  (Lord  Campbell,  C.  J.,  and  Wightman,  Erle,  and 
■Crompton,  JJ.)-     The  case  is  too  clear  for  argument. 

Judgment  for  the  plaintiff. 


THE  COLONEL  LEDYARD. 
(District  Court,  D.  Massachusetts,  1860.     1  Spr.  530,  Fed.  Cas.  No.  3,027.) 

SpraguE,  District  Judge. ^^  This  libel,  in  rem,  seeks  to  recover  for 
damage  done  to  a  quantity  of  flour,  by  the  effluvium  of  spirits  of  tur- 
pentine. In  June,  1859,  this  vessel  was  at  New  Orleans,  taking  freight 
for  Boston,  as  a  general  ship.  The  libelants,  on  the  24th  of  that 
month,  put  on  board  of  her  354  barrels  of  sound  flour,  and  took  a  bill 
of  lading,  by  which  the  carrier  was  bound  to  deliver  the  same  to  the 
libelants  at  Boston,  in  like  good  order  as  when  received,  "the  dangers 
of  navigation  and  fire  only  excepted."  The  flour  was  stowed  between 
decks  aft.  There  were  190  barrels  of  spirits  of  turpentine  in  the  for- 
ward part  of  the  lower  hold.  The  cargo  seems  to  have  been,  in  other 
respects,  properly  stowed,  and  the  hatches  of  the  lower  hold  well  se- 
cured ;  and  during  the  passage,  the  hatches  of  the  upper  deck  were 
taken  off  during  the  daytime,  for  ventilation.  On  arriving  at  Boston, 
the  flour  was  found  to  have  been  penetrated  by  the  effluvium  of  the 
spirits  of  turpentine,  and  its  market  value  thereby  diminished. 

It  is  not  contended,  on  behalf  of  the  claimants,  that  this  damage 
arose  from  the  perils  of  navigation,  or  of  fire,  so  as  to  come  within 
the  exception  in  the  bill  of  lading.  But  it  is  insisted,  that  there  is  an 
established  usage  to  take  spirits  of  turpentine  and  breadstuffs  together, 
as  portions  of  the  cargo  of  a  general  ship,  from  New  Orleans  and  else- 
where, and  that,  in  this  instance,  the  carrier  took  all  proper  care,  and 
performed  his  whole  duty.  It  is  incumbent  upon  the  shippei",  to  see 
that  his  goods  are  of  such  a  character,  and  in  such  condition,  that  they 
will  bear  the  voyage  upon  which  he  sends  them,  if  conducted  in  the 
usual  and  accustomed  manner.  If,  therefore,  his  goods  are  deterio- 
rated, because  they  will  not  bear  the  established  mode  of  stowage,  or 
the  companionship  of  other  articles,  which,  from  the  known  usage  of 
trade,  he  may  reasonably  suppose  may  constitute  a  part  of  the  cargo, 
the  shipper  must  bear  the  loss,  and  not  the  carrier,^ ^    If,  therefore,  the 

15  Part  of  the  opinion  is  omitted. 

ischoate,  J.,  in  Mainwaring  v.  Baric  Carrie  Dunlap  (D.  O.)  1  Fed.  874 
(1880):  "The  rule  of  law  seems  to  be  well  settled  that  the  ship  is  not  respon- 
sible for  injury  necessarily  resulting  to  the  goods  of  one  shipi>er,  by  a  general 
ship,  from  their  being  carried  in  the  same  vessel  with  the  goods  of  other 
shippers,  which,  by  usage,  are  a  proper  part  of  the  same  general  cargo."  Ace. 
Baxter  v.  Leland,  Abb.  Adm.  348,  Fed.  Cas.  No,  1,124  (1848),  affirmed  1 
Blatchf.  526,  Fed.  Cas.  No,  1,125  (1849)  flour  damaged  by  vapor  of  drainage 


3G6  ExcErxioxAL  liability  of  common  carrier.         (Part  4 

claimants  had  succeeded  in  proving  the  usage  which  they  set  up,  it 
would  have  been  a  good  defense ;  but  their  proof  has  wholly  failed. 
The  evidence  does  not  show  that  it  has  been  usual,  on  any  voyages, 
to  take  spirits  of  turpentine,  and  breadstufTs,  as  parts  of  the  same  car- 
go, and  as  to  New  Orleans,  it  is  but  recently  that  spirits  of  turpentine 
have  been  shipped  from  that  port,  in  any  manner.  The  carrier  has 
not  shown  any  usage  which  would  warrant  him  in  putting  spirits  of 
turpentine  on  board  of  his  vessel,  with  the  flour,  if  the  former  would 
be  deleterious  to  the  latter,  and  the  evidence  shows  conclusively  that 
it  was. 

The  numerous  witnesses  for  the  libelant  testified  positively  that  the 
flour  was  injured  by  the  spirits  of  turpentine,  and  the  scientific  witness 
called  for  the  claimant,  on  that  point,  rather  confirmed  than  impaired 
their  testimony.  The  flour  having  been  damaged  on  the  voyage,  and 
it  not  appearing  to  have  arisen  from  any  inherent  principle  of  decay, 
or  from  its  character  or  condition  being  such  as  not  to  bear  the  voy- 
age, as  usually  conducted,  nor  from  the  danger  of  the  seas,  the  carrier 
must  be  responsible.     *     *     * 

from  sufrar  'casks ;  Salil)icb  v.  Prince.  Fed.  Cas.  No.  12,192  (1874),  mulberry 
trees  killed  by  fumes  of  leakasje  from  casks  of  wine;  The  Martba.  Olcott, 
140,  Fed.  Cas.  No.  0.14.5  (184-5)  ;  The  T.  A.  Goddard  (D.  C.)  12  Fed.  174  (1882). 
semble;  Hills  v.  MacKill  (D.  C.)  36  Fed.  702  (1888),  semble.  Compare  The 
Freedom.  L.  H.  3  P.  C.  594  (1871) ;  Alston  v.  Herring,  11  Ex.  822  (1S5(>).  "If 
the  shipowner  chooses  to  carry  a  number  of  different  articles  together,  bo 
does  so  at  bis  own  risk,  and,  though  be  may  have  used  all  possible  care  iu 
stowing  them,  he  is  liable  for  the  damage  they  may  cause  to  one  another." 
Carver,  Carriage  by  Sea.  §  95. 

Compare,  also.  The  Powhattan  (C.  C.)  12  Fed.  870  (1882),  cattle  died  of  heat 
because  put,  with  the  shipper's  consent,  in  the  between-decks ;  The  Lizzie  W. 
Virden  (O.  C)  8  Fed.  024  (1881).  almonds  damaged  by  odor  of  petroleum  car- 
ried on  previous  voyage;  The  Thames,  01  Fed.  1014.  10  C.  C.  A.  232  (1894), 
flour  damaged  by  oil.  because  ship's  bold  had  insufficient  ventilation  ;  Bearse  v. 
Ropes,  1  Spr.  331,  Fed.  Cas.  No.  1,192  (18.56),  hemp  damaged  by  oil  leaking 
from  casks  in  bad  condition. 

For  damage  from  other  cargo  which  might  have  been  avoided  by  different 
stowage  the  carrier  was  held  liable  in  The  Newark,  1  Blatchf.  203.  Fed.  Cas. 
No.  10.141  (1840).  Tlie  Glamorsansbire  (D.  C.)  50  Fed.  840  (1892),  and  Lazarus 
V.  Barber  (D.  C.)  124  Fed.  1007  (1903). 

For  injury  from  such  sweating  or  dampness  as  usually  occurs  in  the  con- 
finement of  a  sbip's  hold  the  carrier  is  not  liable.  The  Live  Yankee,  Fed. 
Cas.  No.  88  (1854);  Baxter  v.  Leland.  Abb.  Adni.  348.  Fed.  Cas.  No.  1.124 
(1848) ;  Clark  v.  Barnwell,  12  How.  272.  13  L.  Ed.  985  (1851).  semble;  Lamb  v. 
Parkman,  1  Spr.  343,  Fed.  Cas.  No.  8.020  (1.857)  Contra:  CamevoTi  v.  Rich.  4 
Strob.  (S.  C.)  ia8,  .53  Am.  Dec.  670  (1850).  But  for  injury  from  the  splashing 
of  bilge  water,  such  as  is  ordinarily  in  a  vessel's  hold,  during  the  ordinary 
rolling  of  the  vessel,  the  carrier  is  liable.  Crosbv  v.  Grinnell.  Fed.  Cas.  No. 
3,422  (1851) ;    Bearse  v.  Ropes,  1  Spr.  331,  Fed.  Cas.  No.  1,192  (1856). 


Ch.  3)  CASES   NOT   WITHIX   THE    RULE.  367 


SECTION  4.— ACT  OF  THE  SHIPPER. 


CONGAR  V.  CHICAGO  &  N.  W.  RY.  CO. 
(Supreme  Court  of  Wiscousin,  1SG9.     24  Wis.  157,  1  Am.  Rep.  1G4.) 

The  plaintiffs  shipped,  by  defendant's  road,  trees  and  other  nur- 
sery stock  from  Whitewater,  in  this  state,  directed  to  "luka,  Iowa," 
the  consignees  being  resident  in  a  village  of  that  name  in  Tama  Coun- 
ty, Iowa.  At  Chicago,  the  goods  were  shipped  by  defendant's  agents, 
by  the  Chicago,  Burlington  &  Quincy  Railroad  Company,  and  at  Quin- 
cy  were  transferred  to  the  Quincy  &  Missouri  Railway,  by  which  they 
were  transported  to  luka,  in  Keokuk  county,  Iowa.  In  consequence 
of  this  mistake,  they  are  alleged  to  have  become  worthless,  and  this 
action  was  brought  to  recover  damages.  Certain  averments  of  the 
complaint  and  answer  will  be  found  recited  in  the  second  paragraph  of 
the  opinion,  infra.  A  demurrer  to  the  answer  was  sustained,  and  de- 
fendant appealed. 

Dixon,  C.  J.  The  decision  of  the  court  below,  as  shown  by  the 
written  opinion  of  the  learned  judge  found  in  the  printed  case,  turned 
upon  the  point  that,  for  the  purpose  of  charging  the  company  with 
negligence  in  shipping  the  goods  over  the  wrong  road,  notice  to  any 
of  its  agents  was  notice  to  the  company.  [The  learned  judge  then  dis- 
cussed the  correctness  of  this  holding,  and  decided  that  for  the  pur- 
pose of  determining  whether  the  carrier  was  guilty  of  actionable  care- 
lessness in  sending  the  goods  to  luka,  Keokuk  county,  it  was  immate- 
rial that  some  of  its  servants  in  a  different  department  of  its  business 
knew  of  the  existence  of  luka,  Tama  county.] 

The  complaint  charges  that  the  place  called  luka,  in  Tama  county, 
low-a,  to  which  the  goods  were  intended  to  be  sent,  was  known  to 
the  agents  of  the  company  residing  and  doing  business  along  the  line 
of  its  road  in  the  state  of  Iowa,  and  that  the  station  where  such  goods 
were  to  be  deposited  was  Toledo.  The  answer  alleges  that  the  same 
place  was  unknown  to  the  officers  and  agents  of  the  company  at  Chi- 
cago; that  they  were  informed  that  said  luka  was  situated  in  Keokuk 
county,  in  the  state  of  Iowa,  and  near  the  line  of  the  Burlington  & 
Missouri  Railroad ;  that  they  examined  a  map  of  Iowa  used  by  ship- 
pers, and  kept  in  the  office  of  defendant,  for  the  purpose  of  ascertain- 
ing where  said  luka  was  situated ;  and  that  said  map  represented  said 
luka  as  being  in  Keokuk  county  aforesaid.  The  answer  further  al- 
leges that  the  goods  were  directed  to  "C.  E.  Cox,  luka,  Iowa,"  with- 
out giving  the  name  of  the  county,  or  other  directions  to  indicate  to 
what  part  of  the  state,  or  to  what  railroad  station  in  the  state,  the  same 


368  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part    4 

were  consigned,  or  by  what  line  of  railroad  the  same  were  to  be  for- 
warded. It  appears  to  this  court,  therefore,  upon  the  pleadings  that 
no  cause  of  action  for  negligence  is  stated  against  the  company,  but 
that,  if  there  was  negligence  on  the  part  of  any  one,  it  was  upon  the 
part  of  the  plaintiff  in  not  having  marked  the  goods  with  the  name  of 
the  county,  or  otherwise  with  that  of  the  railway  station,  or  with  the 
line  of  road  by  which  they  were  to  be  sent. 

The  demurrer  to  the  answer  should,  therefore,  have  been  overruled ; 
and  the  order  sustaining  it  must  be  reversed,  and  the  cause  remanded 
for  further  proceedings,  according  to  law.^" 


HART  V.  CHICAGO  &  X.  W.  RY.  CO. 
(Supreme  Court  of  Iowa,  1SS(5.     G9  Iowa,  4S5,  29  N,  W.  597.) 

The  plaintiff  shipped  a  car  load  of  property  over  defendant's  rail- 
I'oad.  It  was  destroyed  in  transit  by  fire,  and  this  action  was  brought 
to  recover  for  its  loss.  The  property  consisted  of  horses,  harnesses, 
grain,  household  furniture,  and  personal  eft'ects.  The  contract  of  car- 
riage provided  that  the  horses  should  be  loaded,  fed,  watered,  and  car- 
ed for  by  the  shipper  at  his  own  expense,  and  that  one  man  in  charge 
of  them  would  be  passed  free  on  the  train  that  carried  the  car.  Plain- 
tiff placed  a  man  in  charge  of  the  horses  and  he  was  permitted  to  ride 
in  the  car  with  them.  At  Bancroft,  Iowa,  it  was  discovered  that  the 
hay  which  was  carried  in  the  car  to  be  fed  to  the  horses  was  on  fire. 
The  man  in  charge  of  the  horses  was  asleep.  Before  the  fire  could  be 
put  out,  the  horses  were  killed  and  the  rest  of  the  property  destroyed. 
Verdict  and  judgment  for  plaintiff.     Defendant  appeals. 

Reed,  J.^®  1.  There  was  evidence  which  tended  to  prove  that  the 
fire  was  communicated  to  the  car  from  a  lantern  which  the  man  in 
•charge  of  the  horses  had  taken  into  the  car.  This  lantern  was  fur- 
nished by  plaintiff,  and  was  taken  into  the  car  by  his  direction.  De- 
fendant asked  the  circuit  court  to  instruct  the  jury  that  if  the  fire 
which  destroyed  the  property  w^as  caused  by  a  lighted  lantern  in  the 
sole  use  and  control  of  plaintiff's  servant,  who  was  in  the  car  in  charge 
of  the  property,  plaintiff'  could  not  recover.    The  court  refused  to  give 

17  Ace.  Caledonian  Ry.  Co.  v.  Hunter  (Scotland)  20  Sess.  Ca.  (2d  Ser.)  1097 
(1858).  And  see  The  Huntress,  2  Ware,  89,  Fed.  Cas.  No.  0,014  (1810) ;  So. 
Ex.  Co.  V.  Kaufman,  12  Heisk.  (Tenn.)  161  (187-3) :  Knorr  v.  Phil.,  etc.,  R.  Co. 
2  Wkly.  Notes  Cas.  (Pa.)  187  (1875)  ;  Lake  Shore  R.  Co.  v.  Hodapp,  83  Pa.  22 
(1877) ;  Erie  R.  Co.  v.  Wilcox,  84  111.  230,  25  Am.  Rep.  451  (1870) ;  Broadwood 
V.  So.  Ex.  Co.,  148  Ala.  17,  41  South.  769  (1906).  Compare  O'Rourke  v.  C,  B. 
A;  Q.  R.  Co.,  44  Iowa,  526  (1876) ;  Downing  v.  Outerbridge,  79  Fed.  931,  25  C 
C.  A.  244  (1897) ;  Gulf,  etc.,  Ry.  Co.  v.  Maetze,  2  Willson,  Civ.  Cas:  Ct.  App. 
(Tex.)  §  635  (1885). 

18  The  statement  of  facts  has  been  rewritten.  Part  of  the  opinion  is  omit- 
ted. 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  369 

this  instruction,  but  told  the  jury  that,  if  the  fire  was  occasioned  by 
the  fault  or  neghgence  of  plaintiff's  servant,  who  was  in  charge  of  the 
property,  there  could  be  no  recovery.  The  jury  might  have  found 
from  the  evidence  that  the  fire  was  communicated  to  the  hay  from 
the  lantern,  but  that  plaintiff's  servant  was  not  guilty  of  any  negligence 
in  the  matter.  The  question  presented  by  this  assignment  of  error, 
then,  is  whether  a  common  carrier  is  responsible  for  the  injury  or 
destruction  of  property  while  it  is  in  the  course  of  transportation, 
when  the  injury  is  caused  by  some  act  of  the  owner,  but  which  is  un- 
attended with  any  negligence  on  the  part  of  the  owner. 

The  carrier  is  held  to  be  an  insurer  of  the  safety  of  the  property 
while  he  has  it  in  possession  as  a  carrier.  His  undertaking  for  the 
care  and  safety  of  the  property  arises  by  the  implication  of  law  out 
of  the  contract  for  its  carriage.  The  rule  which  holds  him  to  be  an 
insurer  of  the  property  is  founded  upon  considerations  of  public  policy. 
The  reason  of  the  rule  is  that,  as  the  carrier  ordinarily  has  the  abso- 
lute possession  and  control  of  the  property  while  it  is  in  course  of 
shipment,  he  has  the  most  tempting  opportunities  for  embezzlement  or 
for  fraudulent  collusion  with  others.  Therefore,  if  it  is  lost  or  de- 
stroyed while  in  his  custody,  the  policy  of  the  law  imposes  the  loss 
upon  him.  Coggs  v.  Bernard,  2  Ld.  Raym.  909  [ante,  p.  317]  ;  For- 
ward V.  Pittard,  1  Durn.  &  E.  27  [ante,  p.  318]  ;  Riley  v.  Home,  5 
Bing.  217;  Thomas  v.  Railway  Co.,  10  :Metc.  (Alass.)  472,  43  Am. 
Dec.  444;  Roberts  v.  Turner,  12  Johns.  (N.  Y.)  232,  7  Am.  Dec.  311 
[ante,  p.  21]  ;  Moses  v.  Railway  Co.,  24  N.  H.  71,  55  Am.  Dec.  222 
[post.  p.  505]  ;  Rixford  v.  Smith,  52  X.  H.  355,  13  Am.  Rep.  42.  His 
undertaking  for  the  safety  of  the  property,  however,  is  not  absolute. 
He  has  never  been  held  to  be  an  insurer  against  injuries  occasioned  by 
the  act  of  God,  or  the  public  enemy,  and  there  is  no  reason  why  he 
should  be;  and  it  is  equally  clear,  we  think,  that  there  is  no  consider- 
ation of  policy  which  demands  that  he  should  be  held  to  account  to 
the  owner  for  an  injury  which  is  occasioned  by  the  owner's  own  act; 
and  whether  the  act  of  the  owner  by  which  the  injury  was  caused 
amounted  to  negligence  is  immaterial  also.^®  If  the  immediate  cause 
of  the  loss  was  the  act  of  the  owner,  as  between  the  parties,  abso- 
lute justice  demands  that  the  loss  should  fall  upon  him,  rather  than 
upon  the  one  who  has  been  guilty  of  no  wrong;  and  it  can  make  no 
difference  that  the  act  cannot  be  said  to  be  either  wrongful  or  neg- 
ligent. If,  then,  the  fire  which  occasioned  the  loss  in  question  was 
ignited  by  the  lantern  which  plaintiff's  servant,  by  his  direction,  took 
into  the  car,  and  which,  at  the  time,  was  in  the  exclusive  control  and 

19  5cc.  Loveland  v.  Burke,  120  Mass.  139.  21  Am.  Rep.  507  (187G).  In  Ames 
V.  Fargo.  114  App.  Div.  GG6.  99  N.  Y.  Supp.  994  (1906).  a  mare  was  injured 
because  the  shipper's  agent,  who  tied  her  in  the  car.  left  too  much  slack  in 
the  rope,  against  the  objection  of  the  carrier's  employe.  It  was  held  that 
the  common  carrier  was  not  liable  for  the  injury. 

Green  Cabr. — 24 


370  EXCEPTIONAL    LIABILITY    OF    COMMON   CARRIER.  (Part   4 

care  of  the  servant,  defendant  is  not  liable,  and  the  question  whether 
the  servant  handled  it  carefully  or  otherwise  is  not  material.  This 
view  is  abundantly  sustained  by  the  authorities.  See  Hutch.  Carr.  § 
216,  and  cases  cited  in  the  note ;  also  Lawson,  Carr.  §§  19,  23.     *     *     * 


AMERICAN  EXPRESS  CO.  v.  PERKINS. 

(Supreme  Court  of  Illinois,   1867.     42   111.   458.) 

Lawrence,  J.^^  This  was  an  action  on  the  case,  brought  by  Mary 
E.  Perkins  against  the  American  Express  Company  as  a  common  car- 
rier. There  was  a  trial  by  the  court  and  judgment  for  the  plaintiff. 
The  plaintiff  below  delivered  to  the  company  a  package,  containing  a 
wreath,  to  be  taken  from  Decatur  to  Cairo.  The  wreath  was  partially 
made  of  glass,  and  when  it  arrived  at  Cairo  the  glass  was  broken. 
The  receipt  given  by  the  company  to  the  plaintiff,  and  put  in  evi- 
dence by  the  latter,  contained  a  provision  that  the  company  would  not 
be  responsible  "for  any  articles  contained  in  or  consisting  of  glass." 
Without  holding  that  the  company  could  discharge  itself,  by  this  pro- 
viso, from  its  liability  as  a  common  carrier,  unless  the  plaintiff  as- 
sented to  such  proviso,  we  must,  nevertheless,  hold  that  such  liability, 
to  its  common-law  extent,  did  not  attach,  unless  the  company  was  in- 
formed what  the  package  contained,  in  order  that  a  degree  of  care 
might  be  used  proportioned  to  its  fragile  character.  The  plainest  dic- 
tates of  fair  dealing  and  good  faith  required  the  plaintiff  to  furnish 
this  information. 

This  principle  was  settled  in  the  case  of  Chicago  &  Aurora  R.  R.  Co. 
V.  Thompson,  19  111.  578,  where  it  was  sought  to  charge  a  common 
carrier  for  the  loss  of  money  in  a  valise  that  had  been  shipped  in  a  box 
containing  other  articles  of  little  value.  The  company  was  not  in- 
formed that  the  box  contained  money,  and  its  appearance  furnished 
no  indication  of  that  fact,  but  rather  the  contrary.  The  court  reviews 
the  authorities,  and  holds  that,  in  order  to  charge  common  carriers  as 
insurers,  they  must  be  treated  in  good  faith,  and  that  concealment, 
artifice,  or  suppression  of  the  truth  will  relieve  them  of  this  liability. 
It  was  held  the  company  should  have  been  informed  of  the  money 
being  in  the  box,  in  order  to  charge  them.  So,  in  this  case,  the  com- 
pany should  have  been  told  of  the  contents  of  this  box  before  they  can 
be  charged  for  the  breakage  of  so  fragile  a  substance  as  glass.  That 
they  were  so  informed  there  is  not  a  particle  of  evidence. 

The  judgment  is  reversed  and  the  cause  remanded.  Judgment  re- 
versed. 

20  The  statement  of  facts  is  omitted. 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  371 

ROSvS  V.  TROY  &  B.  R.  CO. 
(Supreme  Court  of  Vermout,  Rutland,  1ST7.    49  Vt.  3G4.) 

Case  for  negligence  in  carrying  machinery,  whereby  it  was  injured- 
Plea,  the  general  issue,  and  trial  by  jury,  September  term,  1876; 
Wheeler,  J.,  presiding. 

Plaintiff's  evidence  tended  to  show  that  his  workmen,  on  May  18, 
1874,  by  his  direction,  loaded  on  a  platform  car,  that  had  been  fur- 
nished him  at  his  shop  in  Rutland  by  the  Delaware  &  Hudson  Canal 
Company,  certain  machinery,  consisting,  among  other  things,  of  a 
piece  of  shafting  with  a  flywheel  and  pulley  at  one  end  and  a  crank 
and  crankwheel  at  the  other,  consigned  to  Strother  &  Sons  of  Phila- 
delphia, to  be  transported  by  said  company  to  Eagle  Bridge,  and 
thence  by  defendant  over  its  railroad  to  Troy,  whence  it  was  to  go 
by  water  to  Philadelphia  |  *  *  *  that  the  machinery  was  fastened 
on  the  car  by  blocks  made  of  slabs  15  to  IS  inches  long,  split  through 
the  middle,  and  placed  as  blocking  under  the  flywheel  and  crankwheel, 
the  thick  part  being  next  to  the  wheels,  and  nailed  to  the  floor  of  the 

car  with  twenty-penny  nails,  and  was  apparently  sufficiently  fastened- 
*     *     * 

The  defendant's  testimony  tended  to  prove  that  the  car  on  which  the 
machinery  was  loaded  was  duly  received  by  defendant  and  taken  to 
Troy;  that  after  its  arrival  it  was  put  into  a  train,  and  the  train  care- 
fully backed  down  towards  the  docks  at  a  rate  of  speed  not  exceeding 
3  miles  an  hour;  that  while  the  train  was  rounding  a  curve,  the  outer 
wheels  of  the  car  on  which  the  machinery  was  rose  and  tipped,  so  that 
the  fastenings  under  the  lower  side  of  the  flywheel  gave  way,  and  the 
shaft  and  wheels  rolled  over  and  against  the  abutment  of  a  bridge  on 
the  lower  side  of  the  car,  and  finally  fell  to  the  ground  and  were 
thereby  injured;  that  the  engineer  and  fireman  were  looking  at  the 
wheel  as  it  began  to  roll ;  that  the  engineer  instantly  reversed  the  en- 
gine, and  the  fireman  applied  the  brakes,  stopping  the  train  within  the 
length  of  a  car,  and  as  soon  as  possible;  that  the  track  was  well  con- 
structed and  in  good  condition,  and  that  the  accident  happened  with- 
out any  fault  on  the  part  of  defendant,  its  agents  or  servants,  in  run- 
ning the  train.     *     *     * 

Defendant's  evidence  further  tended  to  show  that  the  injury  hap- 
pened wholly  from  the  unskillful  manner  in  which  the  nails  were 
driven  into  the  block  under  the  west  and  lower  side  of  the  flywheel. 

Among  other  witnesses  who  testified  as  to  the  cause  of  the  accident 
was  Philip  H.  Hicks,  defendant's  yardmaster  at  Troy,  part  of  whose 
business  it  was  to  receive  and  forward  freight  cars,  and  to  see  that 
they  were  in  good  condition  and  properly  loaded,  and  who,  on  cross- 
examination,  testified  that  he  noticed,  after  the  car  came  into  the  yard 
at  Troy,  that  the  blocking  of  the  machinery  was  shaky ;  that  it  was 
not  very  securely  blocked  for  such  big  machinery ;  the  wheels  beinj 


372  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

SO  high  and  so  slight  blocking  under  them,  that  he  wondered  it  had 
come  so  far  in  that  condition,  and  spoke  to  their  men  about  it,  and  that 
he  should  not  have  sent  it  along  if  he  had  used  his  better  judgment; 
but  that  the  blocking  under  the  large  wheel  that  finally  gave  way  and 
caused  the  injury  was  in  its  place,  and  did  not  appear  to  have  been 
stirred  at  all,  and  that  tlie  only  defect  in  it  was  that  it  was  insufficient 
in  the  first  place.     *    *     * 

The  court  held  *  *  *  that  as  the  defendant's  yardmaster  at 
Troy,  and  the  conductor  of  the  train  carrying  the  machinery,  observed 
the  machinery  and  its  condition  before  it  was  sent  along  to  be  deliver- 
ed to  the  next  carrier,  it  was  the  duty  of  them,  or  some  other  of  the 
agents  or  servants  of  the  defendant,  if  anything  was  necessary  to  be 
done  to  make  the  machinery  secure  for  transportation  tO  the  next  car- 
rier, to  do  it,  and  that  as  nothing  was  done,  and  the  machinery  was 
injured  while  being  transported  by  defendant,  defendant  was  liable,  if 
the  machinery  was  the  property  of  the  plaintiff.^^     *     *     * 

Barrett,  J.  The  county  court  seem  to  have  regarded  the  facts 
stated  by  Hicks  on  cross-examination  as  decisively  fixing  liability  on 
the  defendant  for  the  injury  to  the  property.  That  Hicks  saw  the  ar- 
ticles as  they  had  been  fixed  and  fastened  by  the  plaintiff,  and  thought 
the  fastenings  inadequate,  seems  to  have  been  regarded  as  the  vital 
fact  working  that  result.  The  fastening,  whose  insufficiency  caused 
the  injury,  had  not  been  changed  in  any  respect  when  Hicks  saw  it, 
nor  when  the  accident  happened.  Had  that  fastening  been  sufficient, 
the  accident  would  not  have  happened.  Is  the  defendant  chargeable 
with  the  consequences  of  that  insufficiency?  We  think  not,  in  the 
sense  in  which  the  County  Court  seems  to  have  regarded  it.  The  un- 
dertaking and  duty  of  the  defendant  was,  to  transport  and  deliver 
safely  against  all  contingencies  except  the  act  of  God,  public  enemies, 
and  acts  of  the  parties  shipping  the  property.  It  was  the  insurer 
against  everything  but  those.  But  as  against  them,  it  was  bound 
only  to  the  exercise  of  reasonable  care  and  diligence. 

In  this  case,  it  undertook  to  transport  the  articles  safely,  in  the 
condition  in  which  the  plaintiff  had  packed  them,  insuring  against 
everything  but  that  condition  and  its  consequences,  and  bound  to  use 
reasonable  care  and  diligence  against  injury  resulting  from  that  condi- 
tion. The  car  was  procured  by  the  plaintiff  of  another  railroad  com- 
pany, it  was  taken  and  loaded  by  the  plaintiff  in  his  own  way,  and  as 
loaded,  came  to  defendant  from  another  road,  and  was  taken  by  the 
defendant  in  the  line  of  transportation  to  Troy,  in  the  condition  in 
which  the  plaintiff  had  loaded  and  prepared  it  for  transportation.  The 
plaintiff  did  not  ask  nor  expect  anything  more  to  be  done  by  the  rail- 
roads in  that  respect.  It  stands  for  consideration  the  same  as  if  the 
plaintiff  had  put  the  articles  into  boxes,  and  had  loaded  them  in  his 
own  way.     He  would  have  the  risk  of  the  sufficiency  of  the  packing. 

21  The  statement  of  facts  has  been  abbreviated. 


Ch.  3)  CASES  NOT  WITHIN  THE  RL'LE.  373 

If  damage  should  occur  by  reason  of  insufficiency  in  that  packing,  the 
carrier  would  not  be  liable  for  it.  If  on  the  journey  the  boxes  should 
get  broken  and  the  packing  loosened  and  insecure,  it  would  become 
the  duty  of  the  carrier  to  exercise  reasonable  and  proper  care  to  se- 
cure the  articles  against  injury  on  that  account.  But  supposing  the 
boxes  to  have  remained  whole,  and  it  should  not  appear  that  the  con- 
tents had  got  loose,  it  would  be  difficult  to  assign  a  reason  why  the  car- 
rier should  be  chargeable  for  injury  resulting  solely  from  their  having 
got  loose,  or  from  the  boxes  not  proving  strong  enough  to  hold  them. 

In  the  case  before  us,  the  testimony  is  that  the  blocking  under  the 
large  wheel  that  finally  gave  way  and  caused  the  injury,  was  in  its 
place,  and  did  not  appear  to  have  been  started  or  stirred  at  all,  and 
the  only  defect  in  it  was  that  it  was  insufficient  in  the  first  place. 

It  seems  incongruous  for  the  plaintiff  to  claim  that  the  defendant 
should  overjudge  him  in  a  matter  in  which  he  assumed  to  judge  and 
to  do  all  that  he  required  or  supposed  necessary  to  be  done  in  the 
premises,  and  that  the  defendant  should  be  responsible  for  the  inade- 
quacy of  what  the  plaintiff  adjudged  and  did.  If  things  continued  to 
be  just  as  the  plaintiff  had  fixed  them,  and  nothing  occurred  in  the 
transportation,  against  which  the  defendant  was  bound  to  exercise 
precautions  beyond  what  the  plaintiff  had  done,  there  would  seem  to 
be  no  ground  for  holding  the  defendant  liable  for  the  plaintiff's  short- 
coming. 

We  think  the  cause  should  have  been  submitted  to  the  jury  upon 
views  conformable  to  what  is  above  expressed,  for  them  to  find  from 
the  evidence  whether  the  injury  was  caused  by  the  failure  of  the  de- 
fendant to  exercise  reasonable  and  proper  care  in  respect  to  the  fasten- 
ings and  the  transportation  of  the  articles  in  question.  The  other 
question,  viz.,  as  to  the  right  of  the  plaintiff  to  bring  this  suit,  we 
think,  upon  the  evidence,  is  with  the  plaintiff. 

Judgment  reversed,  and  cause  remanded.-^ 

22  See,  also,  Miltiinore  v.  Chicago,  etc.,  R.  Co.,  37  Wis.  190  (lS7.j) ;  The 
David  and  Caroline,  5  Blatchf.  20<t,  Fed.  Cas.  No.  3,593  (1S65). 

In  Union  Express  Co.  v.  Graham.  26  Ohio  St.  595  (1875),  a  fragile  foot  rest 
of  carved  wood  wrapped  in  paper  tied  with  a  cord  was  delivered  to  a  carrier, 
who  accepted  it  only  at  owner's  risk,  on  the  ground  that  it  was  improperly 
packed;  such  articles  being  usually  boxed  or  crated.  The  court  said:  "The 
carrier  may  well  refuse  to  receive  the  property  unless  it  is  properly  packed ; 
but  if  he  receives  it  the  duty  attaches  of  exercising  due  care  for  its  safe 
carriage.  If,  notwithstanding  such  care,  the  property  should  be  damaged 
through  the  defective  packing  of  the  owner  the  carrier  would  be  relieved  from 
liability." 

In  Klauber  v.  American  Express  Co.,  21  Wis.  21,  91  Am.  Dec.  4.52  (1866), 
goods  were  shipped  without  covering  sufficient  to  protect  them  from  rain, 
and  were  damaged  <by  rain  while  in  the  carrier's  hands.  The  carrier  was 
held  liable. 

In  Stuart  v.  Crawley.  2  Starkie.  323  (ISIS),  a  greyhound  was  delivered  to  a 
carrier  with  a  string  about  his  neck.  The  carrier  tied  bim  by  this  string. 
The  dog  slipped  his  head  through  the  noose  and  escaiied.  Lord  Ellenlwrough 
told  the  jury  that  the  carrier  was  liable.  He  said:  "The  case  was  not  like 
that  of  a  delivery  of  goods  imperfectly  packed,  since  there  the  defect  was  not 


374  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part    4 


SECTION  5.— DELAY. 


CONGER  V.  HUDSON  RIVER  R.  CO. 

(Superior  Court  of  City  of  New  York,  1857.     6  Duer,  375.) 

Motion  on  the  part  of  the  plaintiffs,  for  judgment  on  a  verdict  in 
their  favor;  the  questions  of  law  arising  on  the  trial  having  been  di- 
rected to  be  heard,  in  the  first  instance,  at  the  General  Term. 

The  action  was  brought  to  recover  damages  from  the  defendants, 
as  common  carriers,  for  their  delay  in  the  transportation,  upon  their 
railroad,  of  cattle  belonging  to  the  plaintiffs,  from  Albany  to  New 
York.  The  cattle  were  received  at  Albany  in  the  afternoon  of  the 
29th  of  March,  1854,  and  would,  according  to  the  usual  and  ordinary 
course  of  transportation  on  the  defendants'  road,  have  arrived  in  New 
York  early  on  the  following  morning   (Thursday),  that  being  what 

visible ;  but  in  tliis  thie  defendant  liad  the  means  of  seeing  that  the  rJos  was 
iusufficientlj-  secured.  *  *  *  The  owner  had  nothing  more  to  do  tlian  to 
see  that  he  was  properly  delivered,  and  it  was  then  incumbent  on  the  defend- 
ant to  proWde  for  its  security." 

Compare  Evans  v.  Fitchburg  R.  Co.,  note  3,  ante,  p.  358. 

In  The  Ionic,  5  Blatchf.  538,  Fed.  Cas.  No.  7,051)  (18(57),  a  passenger,  on 
leaving  the  ship  at  quarantine  in  company  with  the  captain,  his  trunk  re- 
maining on  board,  was  asked  by  the  captain  if  the  trunk  contained  money, 
and  answered  that  it  contained  only  clothing.  In  fact  it  contained,  beside 
clothing,  $G0  in  coin,  a  gold  watch,  and  gold  ornaments.  The  trunk  was  aft- 
erwards missing.  It  was  held  that  the  passenger  could  not  recover  even  for 
the  trunk  and  clothing. 

Act  of  Shipper  Concurtung  with  Default  of  Carrier.— McCarthy  v. 
Louisville  &  Nashville  R.  Co.,  102  Ala.  193.  14  South.  370,  48  Am.  St.  Rep.  29 
(1893),  was  an  action  in  ordinary  form  arising  from  the  breakage  of  goods 
in  transit.  The  evidence  indicated  that  the  goods  had  been  insufficiently 
packed  by  the  shipi>er,  but  did  not  affirmatively  establish  that  the  carrier  had 
transported  them  with  due  care.  McClellan,  J.,  said:  "The  defenses  which  a 
carrier  under  such  a  contract  may  intemose  to  an  action  for  failure  to  de- 
liver in  good  condition  are  commonly  mentioned  as  two  only,  namely,  that 
the  loss  or  injury  was  due  either  to  the  act  of  God.  or  to  the  act  of  a  public 
enemy.  But  there  is  in  reality  a  third,  resting  on  the  fault  of  the  owner  of 
the  goods  or  his  agent.  This  latter  defense,  while  the  fault  involved  in  it  may 
consist  merely  of  negligence  imputahle  to  the  plaintiffs,  is  in  no  sense,  and 
bears  little  analogy  to,  the  defense  of  contributor!/  vegligcnce,  available  in 
actions  against  common  carriers  of  passengers,  sometimes  in  actions  against 
carriers  of  live  stock,  and  even,  it  may  be,  in  actions  against  carriers  of 
poods — inanimate  things — under  contracts  of  affreightment  which  limit  liabil- 
ity to  loss  or  injury  occasioned  by  the  carrier's  negligence.  *  *  *  jn 
these  latter  cases  the  contributory  negligence  of  the  plaintiff  neutralizes 
and  renders  innocuous  the  causal  negligence  of  the  defendant,  and  destroys 
a  cause  of  action  resting  upon  it.  But  in  the  other  class  of  cases,  that 
to  which  the  case  at  bar  belongs,  negligence  upon  either  hand  is  regarded 
from  an  entirely  different  standpoint,  and  accorded  an  entirely  different  ef- 
fect and  operation,  so  to  speak,  on  the  rights  of  the  parties.  '  The  unaided, 
inieontributed  to  negligence  of  the  plaintiff  producing  the  injury  is  a  defense; 
but  where  there  is  negligence  also  on  the  part  of  the  defendant,  "without  which, 


Ch.  3)  CASES  NOT  WITHIN  THE  RULE.  375 

the  witnesses  call  market  day;  but,  by  reason  of  delay,  they  did  not 
arrive  until  the  evening  of  that  day.  From  the  length  of  the  time  con-- 
sumed  in  the  transportation,  the  cattle,  which  were  inclosed  in  cars, 
became  weary;  some  lay  down,  and  were  trampled  upon  by  others,  and 
on  their  delivery  in  New  York  were  found  bruised  and  shrunken,  and 
deteriorated  in  respect  to  their  condition  for  market.  They  were  sold 
by  the  plaintiffs  on  the  following  Monday,  the  next  regular  market 
day,  but  between  Thursday  and  Monday  the  price  of  cattle  in  the 
market  fell  $1.50  per  cwt. 

The  plaintiffs  claimed  to  recover  for  the  damages  sustained  from 
the  injuries  to  and  the  shrinkage  of  the  cattle,  and  also  damages  for 
the  loss  of  the  market  on  Thursday. 

The  defendants  sought  to  excuse  the  delay  by  showing  that  it  hap- 
pened without  their  fault. 

The  judge  charged  that  common  carriers  are  responsible  for  dam- 
ages to  personal  property,  whilst  in  their  care,  which  may  be  ulti- 
mately delivered,  whether  such  injury  was  occasioned  by  the  careless- 
ness or  negligence  of  the  carriers  or  not;  that  in  this  case  the  delay 
which  caused  the  damage  arose  out  of  a  collision  between  a  train  of 


notwithstanding  plaintifif's  fault,  the  injury  would  not  have  happened,  this 
fault  of  the  defendant  neutralizes  and  eviscerates  the  negligence  of  the  plain- 
tiff as  a  ground  of  defense.  In  the  one  case,  plaintiff's  contributory  negli- 
gence destroys  the  cause  of  action ;  in  the  other,  defendant's  concurring  neg- 
ligence destroys  the  defense." 

Where  the  shipper  assumes  part  of  the  work,  it  is,  in  general,  no  part  of 
the  carrier's  duty  to  inquire  whether  he  has  done  his  work  properly,  and  dam- 
age caused  by  the  shipper's  failure  is  not  attributed  to  the  carrier's  default, 
merely  by  reason  of  the  fact  that  the  carrier  might  easily  have  discovered  it 
and  obviated  its  consequences.  INIiltimore  v.  Chicago  &  R.  Co.,  37  Wis.  190 
(187.J) :  Loveland  v.  Burke.  120  JNIass.  139.  21  Am.  Rep.  507  (1876) ;  Fordyce 
V.  McFlvnn,  HG  Ark.  424.  19  S.  W.  901  (1892) ;  Pa.  Co.  v.  Kenwood  Bridge 
Co.,  170  111.  64.">.  49  N.  E.  215  (1898)  ;  Cohn  v.  Piatt,  48  Misc.  Rep.  378.  95  N. 
y.  Supp.  535  (190.5)  ;  Chicago.  I.  &  L.  R.  Co.  v.  Reymau  (Ind.)  73  N.  E.  587 
(1905).     And  see  Briud  v.  Dale.  S  C.  &  P.  2(>7  (18:^7). 

In  the  following  cases,  where  an  act  of  the  shijiper  concurred  with  an  act 
or  default  of  the  carrier  in  ])roducing  loss,  the  carrier  was  excused:  Ship- 
ping goods  with  knowledge  of  defect  in  carrier's  equipment,  without  notify- 
ing carrier  of  defect.  Betts  v.  Farmers'  L.  &  T.  Co.,  21  Wis.  81,  91  Am.  Dec. 
400  (18GG) ;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Law,  08  Ark.  218,  57  S.  W.  258 
(1900).  Requesting  carrier  to  do  negligent  thing.  .  .Tackson  Arch.  Iron  Works 
V.  Hurlbut,  158  N.  Y.  34.  52  N.  E.  GG5.  70  Am.  St.  Rep.  432  (1899)  ;  Texas 
Central  R.  Co.  v.  O'Laughlin  (Tex.  Civ.  App.)  72  S.  W.  010  (19(«).  Over- 
crowding live  stock  where  railroad  has  failed  to  furnish  suthcient  cars. 
Texas  &  Pac.  Rv.  Co.  v.  Klepper  (Tex.  Civ.  App.)  24  S.  W.  .507  (1893);  Fick- 
lin  V.  Waliash  R.  Co..  115  Mo.  App.  633.  92  S.  W.  347  (1900). 

But  in  the  following  cases  goods  were  shii>ped  with  knowledge  that  the 
carrier's  cars  were  dangerous  or  insufficient,  and  the  carrier  was  held  liable 
for  resulting  loss ;  it  being  considered,  perhaps,  that  the  shipper  acted  pru- 
dently in  shipping  rather  than  delaying  for  better  ac<^onnnodation.  Railroad 
Company  v.  Pratt.  22  Wall.  123.  22  L.  Ed.  827  (1874);  .Johnson  v.  Toledo, 
etc  Ry.  Co.,  1.33  Mich.  596.  95  N.  W.  724.  103  Am.  St.  Rep.  464  (1903)  ;  St. 
Louis,  i.  M.  &  S.  Ry.  Co.  v.  Marshall,  74  Ark.  .597,  8(i  S.  W.  802  (190.5).  And  see 
So.  Ry.  Co.  V.  Wood,  114  Ga.  159.  39  S.  E.  922  (1901),  where  a  passenger  re- 
covered for  sickness  caused  by  the  uncleanly  and  offensive  condition  of  the 
car. 


37G  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

the  defendants  and  a  train  of  the  Hudson  &  Berkshire  Railroad  Com- 
pany ;  and  that  the  defendants  were  responsible  for  the  damages  sus- 
tained, although  that  collision  was  caused  by  the  negligence  of  the 
Hudson  &  Berkshire  Road  alone. 

To  these  portions  of  the  charge  the  defendants  excepted. 

Woodruff^  J.^^  The  undertaking  and  duty  of  a  common  carrier, 
on  receiving  goods  for  carriage,  is  twofold :  First,  to  carry  and  de- 
liver safely;  second,  so  to  carry  and  deliver  within  a  reasonable  time. 

The  first  duty  is  absolute.  Nothing  but  the  act  of  God  or  the  public 
enemies  will  relieve  the  carrier  from  its  performance. 

The  second  duty  is  relative,  depending  upon  various  circumstances 
and  conditions  under  which  goods  are  received,  the  means  at  the  com- 
mand of  the  carrier,  and  the  absence  of  fault  on  his  part  in  the  pro- 
vision he  has  made  for  the  performance  of  his  duty. 

What  is  a  reasonable  time  must  always  be  determined  by  the  cir- 
cumstances imder  which  the  carrier  acts,  and  not  by  the  inquiry  what 
under  other  circumstances  would  be  reasonable,  nor  even  by  the  in- 
quiry what  period  is  ordinarily  required  for  the  performance  of  the 
service. 

The  distinction  above  stated  is  to  be  found  in  the  elementary  writers 
treating  of  the  law  of  common  carriers,  and  is,  I  apprehend,  too  well 
settled  to  be  now  open  for  discussion ;  and  its  recognition  in  this  state 
unequivocally  appears  in  Parsons  v.  Hardy,  14  Wend.  217,  28  Am. 
Dec.  521;  Harmony  v.  Bingham,  12  N.  Y.  99,  62  Am.  Dec.  142; 
Wibert  v.  New  York  &  Erie  Railroad  Co.,  12  N.  Y.  245 ;  Id.,  19  Barb. 
36. 

The  delay  in  the  present  case  is  alleged  by  the  defendants  to  have 
arisen  from  the  negligent  act  of  another  railroad  company  without 
fault  on  their  part,  by  which  their  cars  were  thrown  from  the  railroad 
track,  and  the  passage  of  the  following  train  (containing  the  plain- 
tiffs' property)  necessarily  hindered. 

The  case  of  Parsons  v.  Hardy  presented  the  precise  question  wheth- 
er such  an  accident  caused  by  the  act  of  third  parties,  through  their 
misadventure  or  negligence,  excused  the  delay.  The  court  held  "that 
evidence  that  the  delay  was  so  caused  was  admissible,"  and  that  if  the 
fact  were  proved,  and  the  accident  shown  to  have  occurred  without  any 
want  of  diligence,  care  and  skill  on  the  part  of  the  carrier,  it  would 
excuse  the  delay.     *     *     * 

How  the  jury  would  have  found,  had  the  question  whether  the 
delay,  and  the  consequent  injury  to  the  plaintiffs'  cattle,  were  without 
the  fault  or  negligence  of  the  defendants  or  their  servants,  been  sub- 
mitted to  them,  we  are  not  able  to  say.  If  we  could  determine  what  is 
the  weight  of  the  evidence  upon  that  subject,  we  should  not  consider 
ourselves  at  liberty  to  do  so.     But  if  the  jury  had  found  in  the  de- 

2  3  The  statement  of  facts  has  been  abbreviated,  and  parts  of  the  opinion 
omitted. 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  377 

fendants'  favor  upon  that  question,  then  the  delay  was  caused  by  what 
was,  as  to  the  defendants,  an  inevitable  accident,  which,  according- 
to  the  cases  mentioned,  would  excuse  them. 

If,  then,  the  defendants  are  not  responsible  for  the  delay  in  the  de- 
livery, that  being  excused,  the  excuse  must  necessarily  relieve  them 
from  liability  for  any  injury  to  the  property  which  is  the  mere  result 
of  the  delay ;  that  is,  in  the  case  before  us,  the  injury  described  by  the 
witness  as  the  shrinkage,  fatigue,  and  trampling  of  the  cattle  upon 
each  other,  by  reason  of  the  increased  time  consumed  in  the  carriage. 

So  far  as  this  was  the  mere  result  of  delay,  it  must  stand  upon  the 
same  footing  as  the  depreciation  or  deterioration  of  property,  in  the 
course  of  transportation,  from  its  own  inherent  character  and  liability 
to  decay,  or  injury  from  mere  lapse  of  time,  or  from  the  act  of  car- 
riage itself.  No  rule  of  responsibility  imposes  upon  the  carrier  losses 
arising  from  the  ordinary  deterioration  of  goods  in  quantity  or  quality, 
in  the  course  of  transportation,  or  from  their  inherent  infirmity  or 
tendency  to  decay. 

We  are  not  able  to  perceive  any  reason  upon  which  the  shrinkage 
of  the  plaintiffs'  cattle,  their  disposition  to  become  restive,  and  their 
trampling  upon  each  other  when  some  of  them  lie  down  from  fatigue, 
is  not  to  be  deemed  an  injury  arising  from  the  nature  and  inherent 
character  of  the  property  carried,  as  truly  as  if  the  property  had  been 
of  any  description  of  perishable  goods. 

The  rule  undoubtedly  requires  of  the  carrier  that  he  use  all  reason- 
able and  proper  care  that  the  delay  may  not  be  unnecessarily  preju- 
dicial. 

And  under  the  rule  above  stated,  if  the  delay  was  without  the  fault 
of  the  defendants,  it  is  entirely  clear  that  the  damages,  which  con- 
sisted (as  alleged)  in  the  loss  of  the  market,  cannot  be  recovered. 
The  claim  has  no  foundation  whatever,  save  in  the  mere  lapse  of  time, 
and  if  that  be  excused  the  claim  is  obviously  groundless.     *     *     * 

A  new  trial  must  be  ordered,  with  costs  to  abide  the  event.-* 

24  Ace.  Indianapolis  &  St.  Tx)uis  R.  Co.  v.  Jnntsen.  10  111.  App.  20.5  (1SS2) ; 
Lake  Shore  &  M.  S.  Ry.  Co.  v.  Bennett,  SO  Ind.  4.")7  (1883) :  Little  v.  Fargo, 
4.3  Hun,  233  (1887) ;  Int.  &  Gt.  N.  R.  Co.  v.  Hyues,  3  Tex.  Civ.  App.  20,  21  S. 
W.  622  (1893). 

In  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Levi.  76  Tex.  337.  13  S.  W.  191.  8  L.  R.  A. 
323,  18  Am.  St.  Rep.  45  (1800>.  an  action  for  delay  in  transporting  a  car 
load  of  lemons,  the  answer  averred  that  "rioters  uncoupled  the  cars,  and 
forced  said  car  of  fruit  upon  a  side  track,  where,  by  overwhelming  force 
and  arms  and  violence,  for  the  space  of,  to  wit.  five  days,  they  held  posses- 
sion of  the  same,  refusing  to  permit  the  defendant  to  remove  the  same." 
Stay  ton,  C.  J.,  said:  "To  the  extenfthe  fruit  may  have  deteriorated,  on  ac- 
count of  its  perishable  nature  while  in  transit,  the  facts  pleaded  would  fur- 
nish a  defense,  if  defendant  bestowed  ur>on  it  proper  care,  for  in  such  case 
such  a  loss  would  be  attributed  solely  to  the  delay  which  the  answer  excuses." 


378  EXCEPTIONAL   LIABILITY   OF   COMMON'  CARRIER.  (Part    4 

PITTSBURGH,  FT.  W.  &  C.  R.  CO.  v.  HAZEN. 

(.Supreme  Court  of  Illinois,  1S7G.     ^  111.  .3G.  25  Am.  Rep.  422.) 

Dickey,  J.  On  the  10th  of  December,  1870,  Hazen  shipped,  by  the 
freight  line  of  the  railway  company,  a  quantity  of  cheese  from  Chi- 
cago to  New  York.  The  cheese  was  delivered  to  the  consignees,  at 
New  York,  on  the  28th  of  December — 18  days  after  the  shipment. 
The  proofs  tended  to  show  that  the  usual  period  of  such  transit,  at 
that  time,  did  not  exceed  12  days ;  that  the  weather  from  the  10th  to 
the  23d  was  not  severely  cold,  but  that  severe  cold  occurred  between 
the  23d  and  2Sth ;  and  that  the  cheese,  when  delivered  in  New  York, 
was  frozen,  and  thereby  damaged  to  the  amount  of  $1,100.55,  and  for 
this  amount  was  the  verdict  and  judgment  in  favor  of  Hazen,  from 
which  the  railway  company  appeals. 

As  an  excuse  for  this  delay  beyond  the  usual  period  of  such  transit, 
the  defendant,  at  the  trial  below,  sought  to  prove  that  the  sole  cause 
of  the  delay  was  the  obstruction  of  the  passage  of  trains  in  the  neigh- 
borhood of  Leavitsburg,  resulting  from  the  irresistible  violence  of  a 
large  number  of  lawless  men,  acting  in  combination  with  brakemen, 
who,  up  to  that  time,  had  been  employed  by  the  railway  company; 
that  the  brakemen  refused  to  work,  and  were  discharged,  and  other 
brakemen  promptly  employed,  but  the  moving  of  trains  was  prevented 
by  the  threats  and  violence  of  a  mob.  This  evidence  was  objected  to' 
by  the  plaintiff,  and  excluded  by  the  court. 

This,  we  think,  was  error.  It  is  doubtless  the  law  that  railway  com- 
panies cannot  claim  immunity  from  damages  for  injuries  resulting  in 
such  cases  from  the  misconduct  of  their  employes,  whether  such  mis- 
conduct be  willful  or  merely  negligent.  If  employes  of  a  common 
carrier  suddenly  refuse  to  work,  and  the  carrier  cannot  promptly  sup- 
ply their  places  with  other  employes,  and  injury  results  from  the  de- 
lay, the  carrier  is  responsible.  Such  delay  results  from  the  fault  of 
the  employes.  The  evidence  offered  in  this  case,  however,  tends  to 
prove  that  the  delay  was  not  the  result  of  a  want  of  suitable  em- 
ployes to  conduct  the  trains,  for  the  places  of  the  ''strikers"  were, 
according  to  the  proof  offered,  promptly  supplied  by  others.  The 
proof  offered  tends  to  show  that  the  delay  was  caused  by  the  lawless 
and  irresistible  violence  of  the  discharged  brakemen,  and  others  acting 
in  combination  with  them.  These  men,  at  the  time  of  this  lawless- 
ness, were  no  longer  the  employes  of  the  company.  The  case  sup- 
posed is  not  distinguishable  in  principle  from  the  assault  of  a  mob  of 
strangers. 

All  the  testimony  on  this  subject  should  have  been  submitted  to 
the  jury,  for  their  determination  of  the  question  whether,  under  all 
the  circumstances,  the  period  of  transit  was  unnecessarily  long. 

For  the  delay  resulting  from  the  refusal  of  the  employes  of  the 
company  to  do  duty,  the  company  is  undoubtedly  responsible.     For  de- 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  379 

lay  resulting-  solely  from  the  lawless  violence  of  men  not  in  the  em- 
ployment of  the  company,  the  company  is  not  responsible,  even  though 
the  men  whose  violence  caused  the  delay  had,  but  a  short  time  before, 
been  employed  by  the  company. 

Where  employes  suddenly  refuse  to  work,  and  are  discharged,  and 
delay  results  from  the  failure  of  the  carrier  to  supply  promptly  their 
places,  such  delay  is  attributable  to  the  misconduct  of  the  employes 
in  refusing  to  do  their  duty,  and  this  misconduct  in  such  case  is  justly 
considered  the  proximate  cause  of  the  delay  ;-^  but  when  the  places 
of  the  recusant  employes  are  promptly  supplied  by  other  competent 
men,  and  the  "strikers"  then  prevent  the  new  employes  from  doing 
duty  by  lawless  and  irresistible  violence,  the  delay  resulting  solely 
from  this  cause  is  not  attributable  to  the  misconduct  of  employes,  but 
arises  from  the  misconduct  of  persons  for  whose  acts  the  carrier  is 
in  no  manner  responsible. 

The  judgment  is  therefore  reversed,  and  the  cause  remanded  for 
a  new  trial. 

Judgment  reversed.-® 

Walker,  Craig,  and  ScholfiEld,  JJ-  We  dissent  from  the  rea- 
soning and  conclusion  in  the  foregoing  opinion. 


SECTION  6.— GRATUITOUS  CARRIAGE 


Lord  Coke,  in  his  report  of  SOUTHCOTE'S  CASE,  Court  of 
King's  Bench,  4  Co.  83b  1601 ;  *  *  *  g^j^  jj^  accompt  it  is  a  good 
plea  before  the  auditors  for  the  factor  that  he  was  robbed,  as  appears 
by  the  books  in  13  (22)  E.  3.  Accompt  111.  41  E.  3,  3  and  9  E.  4. 
40.  For  if  a  factor  (although  he  has  wages  and  salary)  does  all  that 
which  he  by  his  industry  can  do,  he  shall  be  discharged,  and  he  takes 
nothing  upon  him,  but  his  duty  is  as  a  servant  to  merchandize  the  best 
that  he  can,  and  a  servant  is  bound  to  perform  the  -command  of  his 
master ;  but  a  ferryman,  common  innkeeper,  or  carrier,  who  takes  hire, 
ought  to  keep  the  goods  in  their  custody  safely,  and  shall  not  be  dis- 
charged if  they  are  stolen  by  thieves.    Vide  22  Ass.  41. 

2  5  Ace.  Blackstock  v.  N.  Y.  &  E.  R.  Co..  20  X.  Y.  4S,  75  Am.  Dec.  372  (18.59) ; 
Read  v.  St.  Louis,  etc.,  R.  Co.,  60  Mo.  19!)  (187.5). 

26  Ace.  Pittslnirg.  etc.,  R.  Co.  v.  nallowell,  05  Iiul.  188,  .32  Am.  Rep.  03 
<1S70) ;  Lake  .shore,  etc.,  R.  Co.  v.  Bennett,  SO  Ind.  457  (1S.S:5) ;  Geisnier  v. 
Lake  Shore,  etc..  R.  Co.,  102  N.  Y.  .503,  7  N.  E.  82S.  .55  Am  Rep.  837  (1880): 
Internatioual  &  G.  N.  R.  Co.  v.  Tisdale,  74  Tex.  8,  11  S.  W.  900,  4  L.  R.  A.  545 
<1889). 


380  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

1  ROLLE'S  ABRIDGAIENT,  2  c,  pi.  4:  If  one  delivers  goods  to 
a  common  carrier  to  carry,  and  the  carrier  is  robbed  of  them,  yet  he 
shall  be  charged  with  them  because  he  had  hire  for  them,  and  has  im- 
plicitly taken  upon  himself  the  safe  delivery  of  the  goods  and  there- 
fore he  shall  answer  for  their  value  if  he  be  robbed  (citing  Woodlife's 
Case,  ante,  p.  312). 


KNOX  V.  RIVES. 
(Supreme  Court  of  Alabama,  1S48.     14  Ala.  249,  48  Am.  Dec.  97.) 

Chilton,  J.^^  The  defendants  are  sued  as  common  carriers,  to 
recover  the  value  of  a  sealed  package,  containing  $2,500  in  bank  bills,, 
received  on  board  the  steamboat  Montgomery,  by  the  clerk  thereof,  to 
be  carried  from  the  city  of  Mobile  to  the  city  of  Montgomery,  and 
to  be  delivered  to  the  plaintiff.    The  package  was  lost. 

The  plaintiff  having  proved  that  the  boat  was  engaged  in  carrying 
goods  and  merchandise  generally  for  hire,  and  the  general  custom  of 
boats  engaged  in  similar  business  as  the  Montgomery,  in  carrying 
letters  containing  remittances  of  bank  bills,  we  think  it  was  permis- 
sible for  the  defendants  to  explain  that  usage,  by  showing  that  no 
freight  or  compensation  was  ever  charged,  or  allowed,  upon  such 
remittances,  unless  some  evidence  was  given  by  the  boat  of  their  re- 
ceipt, in  which  event  only  a  charge  was  made,  and,  further,  to  show 
that  such  was  the  uniform  practice  of  defendants'  boat.  If  we  allow 
the  usage  to  be  irrelevant,  the  proof  of  it  was  first  introduced  by  the 
plaintiff,  and  in  such  case  rebutting  proof  is  allowed.    *    *    * 

We  come  now  to  the  main  question  presented  by  the  record,  which 
is  whether  the  defendants  are  liable  as  common  carriers  for  the  pack- 
age received  on  board  their  boat,  to  be  transported,  without  reward, 
from  Mobile  to  Montgomery;  for  we  must  regard  the  finding  of  the 
jury  as  afiirming  that  the  boat  undertook  to  carry  such  package  gra- 
tuitously. 

To  my  mind,  it  is  a  clear  proposition  of  law  that  the  payment  of 
freight  on  the  part  of  the  shipper,  or  the  right  of  the  carrier  to  sue 
for  and  recover  the  same,  lies  at  the  foundation  of  the  defendants' 
liability  as  common  carriers.  Lord  Coke  says :  "He  hath  his  hire, 
and  thereby  implicitly  undertaketh  the  safe  delivery  of  goods  deliv- 
ered to  him."  Co.  Lit.  89,  a.  A  common  carrier,  says  Judge  Story, 
has  been  defined  to  be  one  who  undertakes  for  hire  or  reward  to  trans- 
port the  goods  of  such  as  choose  to  employ  him  from  place  to  place. 
Com.  on  Bail.  321,  §  495. 

In  the  case  of  Citizens'  Bank  v.  Nantucket  Steamboat  Co.,  2  Story, 
16-35,  Fed.  Cas.  No.  2,730,  the  same  learned  judge  holds  this  lan- 

2  7  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


'Ch.  3)  CASES  NOT  WITHIN  THE  RULE.  381 

guage:  "I  take  it  to  be  exceedingly  clear  that  no  person  is  a  com- 
mon carrier  in  the  sense  of  the  law,  who  is  not  a  carrier  for  hire ;  that 
is,  who  does  not  receive,  or  is  not  entitled  to  receive,  any  compensa- 
tion for  his  services.  If  no  hire  or  recompense  is  payable  ex  debito 
justitias,  but  something  is  bestowed  as  a  gratuity  or  voluntary  gift, 
then,  although  the  party  may  transport  persons  or  property,  he  is  not 
a  common  carrier,  but  a  mere  mandatory." 

It  is  admitted  that  no  contract  to  pay  freight  is  necessary,  neither 
is  it  necessary  that  the  rate  of  compensation  to  be  paid  should  be 
fixed,  but  the  right  to  compensation  must  exist.  If  it  does  not  exist, 
the  defendants  are  mandatories,  not  common  carriers.  To  hold  that 
the  law  would  devolve  upon  the  defendants,  with  respect  to  such  gra- 
tuitous accommodation,  the  liability  of  insurers,  it  seems  to  me  would 
be  repugnant  to  the  dictates  of  justice.  Partridge  v.  Brewster,  1  Pick. 
(Mass.f  50;  Story,  Bail.  §§  495,  505;  Gisbourn  v.  Hurst,  1  Salk.  249; 
Allen  V.  Sewall,  2  Wend.  (N.  Y.)  327,  s.  c.  6  Wend.  335.    *     *     * 

The  fact  that  the  usage  may  have  originated  in  a  belief  on  the  part 
of  the  owners  of  boats  that  their  custom  and  consequent  receipts  would 
be  enhanced  by  the  gratuitous  transportation  of  such  packages  does 
not,  in  our  opinion,  vary  their  liability.  The  proof  shows  such  let- 
ters were  received  indiscriminately,  and  indifferently  from  all  persons, 
as  well  from  those  who  were  patrons  of  the  boat  as  from  those  who 
were  not.  Such  consideration  would  be  too  vague,  indefinite  and 
remote,  to  form  the  basis  of  such  extraordinary  liability. 

In  our  opinion,  there  is  no  error  in  the  record,  and  the  judgment  of 
the  circuit  court  is  affirmed. 


Norton,  J.,  in  LEMON  v.  CHANSLOR,  68  Mo.  340,  30  Am.  Rep. 
799  (1878)  :  "*  *  *  The  weight  of  authority  favors  the  doctrine 
of  holding  the  carrier  of  passengers  to  the  same  degree  of  diligence 
in  all  cases  where  one  has  been  received  as  a  passenger,  on  the  prin- 
ciple that  if  'a  man  undertakes  to  do  a  thing  to  the  best  of  his  skill, 
when  his  situation  or  profession  is  such  as  to  imply  skill,  an  omission 
of  that  skill  is  imputable  to  him  as  gross  negligence.'  Shiells  v.  Black- 
burne,  1  H.  Bl.  R.  115,  158;  ShilHbeer  v.  Glyn,  2  Mees.  &  W.  143. 
In  the  case  of  Philadelphia  &  Read.  R.  Co.  v.  Derby,  14  How.  468,  14 
L.  Ed.  502,  it  was  *  *  *  observed  that,  'when  carriers  undertake 
to  convey  persons  by  the  powerful  and  dangerous  agency  of  steam, 
public  policy  requires  that  they  should  be  held  to  the  greatest  possible 
care  and  diligence,  and  whether  the  consideration  for  such  transporta- 
tion be  pecuniary  or  otherwise,  the  personal  safety  of  the  passengers 
should  not  be  left  to  the  sport  of  chance  or  the  negligence  of  care- 
less servants.  Any  negligence  in  such  cases  may  well  deserve  the 
epithet  of  gross.'     *     *     *     If  the  above  authorities  go  no  further, 


382  EXCEPTIOXAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

they  at  least  conclusively  settle  the  question  that  a  gratuitous  passenger 
can  recover  for  an  injury  occasioned  by  the  gross  neglect  of  the  car- 
rier, and  also  that  in  such  cases  any  negligence  is  gross  negligence."  ^® 


PIERCE  V.  MILWAUKEE  &  ST.  P.  RY.  CO. 

(Supreme  Court  of  Wisconsin,   18G8.     23  Wis.   387.) 

Action  to  recover  the  value  of  eight  bundles  of  bags,  which  had 
been  in  use  for  two  seasons  in  transporting  grain  from  Lake  City, 
Minn.,  to  Genoa,  Wis.,  by  way  of  the  river  and  the  defendant's  rail- 
way. The  complaint  alleged  that  the  bags  were  delivered  by  the 
packet  company  doing  business  on  the  river,  to  the  defendant  at  La 
Crosse,  and  that  defendant,  as  a  common  carrier,  received  said  bags 
to  be  safely  carried  by  it  over  its  railway,  and  delivered  at  Milwaukee 
to  the  plaintiff,  "for  a  reasonable  compensation  to  be  paid  by  the  plain- 
tiff therefor."  Answer,  a  general  denial.  At  the  trial  defendant 
sought  to  avoid  liability,  as  a  common  carrier,  for  the  loss  of  the 
bags,  by  showing  a  uniform  and  long-established  custom  of  the  river 
and  railway,  that  all  bags  used  in  the  transportation  of  grain  on  said 
river  or  railway  were  carried  free  of  charge,  when  empty,  claiming 
that  for  bags  so  carried  it  could  be  held  responsible  only  in  case  of 
gross  negligence.    *     *     * 

Verdict  and  judgment  for  the  plaintiff,  and  defendant  appealed. 

Paine,  J.^®  After  carefully  considering  the  original  briefs  of  coun- 
sel and  the  arguments  upon  the  rehearing,  I  have  come  to  the  con- 
clusion that  the  carrying  of  the  bags  of  the  plaintiff  by  the  company 
cannot  be  considered  as  gratuitous,  whether  the  custom  was  only  to 
return  bags  free  that  had  gone  over  the  road  filled,  or  whether  it  was 
a  general  custom  to  carry  the  bags  of  customers  free  both  ways,  with- 
out regard  to  the  question  whether,  at  any  particular  time,  they  were 
returning  from  a  trip  on  which  they  had  passed  over  the  road  filled, 
or  not.  If  such  a  relation  were  created  by  an  express  contract,  in- 
stead of  being  based  upon  a  custom,  it  would  seem  clear  that  there 
would  be  a  sufficient  consideration  for  the  agreement  to  carry  the 
bags.  If  a  written  contract  should  be  signed  by  the  parties,  in  which 
the  one  should  agree  to  give  the  company  the  transportation  of  his 
grain  at  its  usual  rates,  and  the  company  should  agree  in  considera- 

2  8  See.  also,  Ohio  &  M.  R.  Co.  v.  Muliling,  30  111.  9,  81  Am.  Dec.  33G  (18G1) ; 
Gulf.  etc..  Rv.  Co.  v.  McGowu,  65  Tex.  640  (1886) ;  Indianapolis,  etc.,  Co.  v. 
Lawson,  143  Fed.  8.34,  74  C.  C.  A.  630,  5  L.  R.  A.  (N.  S.)  721  (1906). 

"Nor  is  It  material  that  the  gratuitous  carriage  of  a  ti-unk  was  accom- 
panied By  the  gratuitous  carriage  of  a  person.  The  duty  to  carrj-  the  trunk 
safely  was  only  the  same  tliat  the  law  would  have  imi>osed  had  the  trunk 
been  taken  upon  a  freight  train  gratuitously ;  and  no  greater  degree  of  care 
could  he  demanded  in  one  case  than  in  the  other."  Cooley.  C.  ,T.,  in  Flint  & 
Pere  Marquette  Ry.  Co.  v.  Weir,  37  Mich.  Ill,  26  Am.  Rep.  499  (1877). 

2  8  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  383 

tion  thereof  to  carry  the  grain  at  those  rates,  and  also  to  carry  the 
bags  both  ways  whenever  the  customer  might  desire  it,  without  any 
further  charge,  there  can  be  no  doubt  that  the  giving  to  the  com- 
pany his  business,  and  the  payment  of  the  regular  freight,  would  be 
held  to  constitute  the  consideration  for  this  part  of  the  agreement  on 
the  part  of  the  company. 

But  if  it  would  be  so  in  such  a  case,  it  is  equally  so  when  the  same 
understanding  is  arrived  at  through  the  means  of  a  custom.  The  com- 
pany, by  establishing  such  a  custom,  makes  the  proposition  to  all  per- 
sons, that  if  they  will  become  its  customers,  it  will  carry  their  bags 
both  ways  without  any  other  compensation  than  the  freight  upon  the 
grain.  Persons  who  become  its  customers  in  view  of  such  a  custom 
do  so  with  that  understanding.  And  the  patronage  and  the  freights 
paid  are  the  consideration  for  carrying  the  bags.  The  company,  in 
making  such  a  proposition,  must  consider  that  this  additional  privilege 
constitutes  an  inducement  to  shippers  to  give  it  their  freight.  And 
it  must  expect  to  derive  a  sufficient  advantage  from  an  increase  of 
business  occasioned  by  such  inducement,  to  compensate  it  for  such 
transportation  of  the  bags.  And  it  ought  not  to  be  allowed,  when 
parties  have  become  its  customers  with  such  an  imderstanding,  after 
losing  their  bags,  to  shelter  itself  under  the  pretext  that  the  carrying 
of  the  bags  was  a  mere  gratuity,  and  it  is  therefore  liable  only  for 
gross  negligence. 

It  makes  no  difference  that  the  custom  is  described  as  being  to  carry 
the  bags  free.  In  determining  whether  they  are  really  carried  "free" 
or  not,  the  whole  transaction  between  the  parties  must  be  considered. 
And  when  this  is  done,  it  is  found  that  all  that  is  meant  by  saying 
that  the  empty  bags  are  carried  free,  is,  that  the  customers  pay  no 
other  consideration  for  it  than  the  freight  derived  from  the  business 
they  give  the  company.  But  this,  as  already  seen,  is  sufficient  to 
prevent  the  transportation  of  the  bags  from  being  gratuitous.    *    *    ''' 

I  can  see  no  ground  for  any  such  difficulty  as  that  suggested  by 
the  appellant's  counsel  on  the  re-argument.  He  said,  if  this  under- 
taking to  return  bags  free  was  to  be  considered  a  matter  of  contract 
on  the  part  of  the  company,  it  would  be  unable  to  collect  its  freights 
on  delivering  grain  upon  the  ground  that  its  contract  was  not  then 
completed.  But  this  could  not  be  so.  The  company,  on  delivering 
the  grain,  parts  with  the  possession  of  the  property  to  the  shipper 
or  his  consignee.  And  on  doing  that,  it  is  of  course  entitled  to  its 
freight.  And  its  agreement  to  return  the  bags  without  further  charge, 
or  to  carry  them  free  both  ways  whenever  its  customer  should  deliver 
them  empty  for  that  purpose,  could  not  have  the  effect  of  destroying 
this  right.  The  contract  would  be  construed  according  to  the  inten- 
tion of  the  parties.  See  Angell  on  Carriers,  §  399,  note  3,  and  cases 
cited.  And  here  it  would  be  very  obvious  that  neither  of  the  parties 
contemplated  any  relinquishment  by  the  company  of  its  right  to  freight 
on  delivering  the  grain.     The  transaction  for  that  purpose  would  be 


384  EXCEPTIONAL    LIABILITY   OF   COMMON  CARRIER.  (Part   4 

distinct.  Here  the  defendant's  evidence  showed  that  the  plaintiff  was 
a  "customer."  The  company  claims  that  he  had  complied  wath  the 
custom  on  his  part,  so  as  to  make  it  applicable  to  him.  But  if  he  had 
done  so,  as  that  constitutes  a  sufficient  consideration  to  prevent  the 
carrying  of  his  bags  from  being  gratuitous,  the  company  is  liable. 

It  is  immaterial,  therefore,  whether  the  instruction  excepted  to  was 
strictly  accurate  or  not,  in  assuming  that  there  was  evidence  tending 
to  show  that  the  bags  were  on  a  return  trip,  after  having  gone  over 
the  road  filled;  as  neither  in  that  case,  nor  on  the  custom  as  claimed 
to  have  been  shown  by  the  appellant,  would  the  transportation  be 
gratuitous. 

The  judgment  is  affirmed,  with  costs. ^"^ 


SECTION  7.— ARTICLES  NOT  IN  THE  CARRIER'S 

CUSTODY 


LOVETT  V.  HOBBS. 

(Court  of  King's  Bench,  IGSO.     2  Show.  127.) 

Case.  The  plaintiff  declares,  for  that  Richard  Hobbs,  on  the  first 
day  of  November,  in  the  thirty-first  year  of  Charles  the  Second,  and 

30  In  the  following  cases  carriage  nominally  free  was  held  to  be  for  hire: 
Proceeds  of  goods  sold  brought  back  in  pursuance  of  usage  to  do  so  without 
extra  charge.  Kemp  v.  Coughtry,  11  Johns.  (N.  Y.)  107  (1814) ;  Harrington 
V.  M'cShane,  ante,  p.  39.  Drover's  "free  pass"  issued  as  part  of  contract  to 
carry  cattle.  Railroad  Co.  v.  Lockwood,  17  Wall.  357,  21  L.  Ed.  027  (1873) ; 
Lake  Shore  &  M.  S.  Ky.  Co.  v.  Teeters,  lG(j  Ind.  335,  77  N.  E.  599,  5  L.  B.  A. 
<N.  S.)  425  (1906) ;  cases  in  9  Cent  Dig.  Carriers.  §  980.  Employe's  trunk,  if 
carried  under  usage  to  make  no  charge  to  employes.  Gott  v.  Dinismore,  111 
Mass.  45  (1872).  Tank  cars,  though  freight  charged  only  on  oil  they  contained. 
Spears  v.  Lake  Shore,  etc.,  R.  Co.,  67  Barb.  (N.  Y.)  513  (1876).  Woman  trav- 
eling on  "free  pass"  issued  at  her  husband's  request  that  she  might  accom- 
pany him  on  his  journey  to  testify  for  the  railroad,  if  given  in  consideration 
of  his  making  the  journey.  Nickles  v.  Seaboard  Air  Line,  74  S.  C.  102,  54 
S.  E.  255  (1906),  semble. 

"The  defendant  desired  plaintiff's  services  at  Glenn's  Ferry,  and  agreed  to 
transport  him  there  free  of  charge,  if  he  would  go  there  and  enter  its  em- 
ployment after  he  arrived  there.  The  plaintiff  agreed  to  this  arrangement. 
The  transaction  was  a  mutual  benefit  to  both  of  the  parties,  and  the  pass  did 
not  alter  it.  This  was  a  case  where  the  defendant  as  a  common  carrier  of 
passengers  could  not  stipulate  for  the  exemption  from  liability  on  account  of 
the  negligence  of  his  servants."  Williams  v.  Oregon  Short  Line  R.  Co..  IS 
Utah,  210.  54  Pac.  991,  72  Am.  St.  Rep.  777  (1898).  And  see  Railway  Co.  v. 
Stevens,  95  U.  S.  655,  24  L.  Ed.  535  (1877). 

Compare  Ulrich  v.  N.  Y.  Cent.  R.  Co.,  108  N.  Y.  80,  15  N.  E.  60,  2  Am.  St. 
Rep.  369  (1888),  passenger  traveling  on  free  pass  who  paid  for  seat  in  parlor 
car.  In  Gray  v.  Mo.  River  Packet  Co.,  64  Mo.  47  (1876),  a  common  carrier 
who  had  accepted  an  animal  for  transportation,  saying  that  he  would  not 
charge  much,  if  anything,  and  intending  to  charge  nothing,  was  held  to  be  a 
carrier  for  hire. 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  385 

long  before  and  after,  was,  and  yet  is  a  common  hackney  coachman, 
and  a  common  carrier  as  well  of  men's  persons  as  of  their  goods 
and  chattels,  in  his  coach  from  the  borough  of  Marlborough  to  the 
city  of  London ;  and  thence  to  Marlborough,  pro  mercede  et  stipendio, 
to  be  paid  for  persons  and  their  goods ;  and  also  that  all  common 
coachmen  and  common  carriers  by  the  law  and  custom  of  England 
ought  safely  and  securely  to  keep  all  passengers'  goods  and  chattels 
from  loss ;  and  whereas  the  plaintiff  the  day  and  year  aforesaid,  at 
Marlborough  aforesaid,  had  delivered  to  the  defendant  one  box,  in 
which  were  several  goods  and  chattels  of  the  plaintiffs,  viz.,  etc.,  to 
be  carried  from  Marlborough  to  the  city  of  London,  and  safely  to 
be  delivered  to  the  plaintiff  there;  and  the  plaintiff  in  fact  says,  that 
the  defendant  afterwards,  viz.  1st  November  aforesaid,  took  his 
journey  towards  London,  and  the  2d  of  November  performed  his 
journey  and  came  to  London,  and  yet  notwithstanding,  the  defend- 
ant being  negligent  of  his  office  of  a  common  coachman  and  common 
carrier,  did  not  safely  and  securely  carry  the  said  box  and  goods,  and 
deliver  them  to  the  plaintiff ;  whereby  the  plaintiff  lost  her  said  goods, 
to  the  value  of  sixty  pounds;  and  lays  it  to  her  damage  of  one  hun- 
dred pounds. 

Upon  not  guilty  pleaded  it  came  to  Salisbury  assizes,  before  the  then 
Air.  Justice  Jones,  where,  upon  evidence,  the  case  appeared,  that 
the  plaintiff  was  a  passenger  in  the  defendant's  coach,  which  was  a 
stagecoach  between  London  and  Marlborough,  and  the  goods  carried 
with  her. 

Upon  which  1,  being  of  counsel  with  the  defendant,  urged,  that  the 
action  lay  not,  for  that  a  common  coachman  is  but  a  new  inven- 
tion and  not  within  the  common  law  or  custom  of  England  concern- 
ing common  carriers ;  that  this  is  not  for  conveyance  of  goods,  but 
of  persons;  and  whatsoever  goods  of  passengers  are  by  them  car- 
ried are  still  in  the  passengers'  custody,  and  they  remove  them  to  their 
own  chambers  at  nights  in  their  inns;  and  if  this  should  hold,  where 
would  it  end ;  it  might  as  well  be  brought  for  the  rings  on  their  fin- 
gers, or  money  in  their  pockets  which  highwaymen  rob  the  passen- 
gers of. 

But  the  judge  was  of  opinion,  that  if  a  coachman  commonly  carry 
goods,  and  take  money  for  so  doing,  he  will  be  in  the  same  case  with 
a  common  carrier,  and  is  a  carrier  for  that  purpose,  whether  the  goods 
are  a  passenger's  or  a  stranger's :  the  like  of  a  waterman  or  Graves- 
end  boat,  which  carries  both  men  and  goods. 

Then  we  were  forced  to  give  evidence  of  our  coach's  being  full ; 
our  refusal  to  carry  them ;  and  that,  without  our  knowledge  at  first. 
the  porter  put  up  the  box  behind  the  coach,  which,  when  we  per- 
ceived, we  denied  to  take  the  charge  of  it. 

The  Judge  agreed  this  to  be  a  good  answer;  for  if  an  hostler  re- 
Grken  Carr. — 25 


386  EXCEPTIOXAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

fuse  a  g:uest,  his  house  being  full,  and  yet  the  party  say  he  will  shift, 
etc.,  if  he  be  robbed,  the  hostler  is  discharged. 

This  fact  being  left  to  the  jury,  there  was  a  verdict  for  the  de- 
fendant.   *    *    * 


WYCKOFF  V.  QUEENS  COUNTY  FERRY  CO. 

(Court  of  Appeals  of  New  York,  1873.     52  N.  Y.  32,  11  Am.  Eep.  6.j0.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  affirming  a  judgment  in  favor  of 
plaintiff  entered  upon  a  verdict. 

This  action  was  brought  to  recover  damages  for  the  loss  of  plain- 
tiff's horse,  wagon  and  harness,  alleged  to  have  been  occasioned  by  the 
neglect  of  defendant  while  the  property  was  upon  its  boat,  in  the  cus- 
tody and  care  of  plaintiff. 

On  the  5th  October,  1866,  plaintiff  drove  his  horse  and  buggy  on 
board  the  defendant's  ferryboat  at  Astoria  to  cross  over  to  New  York. 
He  and  his  wife  remained  in  the  buggy.  When  the  whistle  was  blown 
for  the  boat  to  leave,  the  horse  became  restive ;  and  upon  the  blowing 
of  the  second  whistle  rushed  forward,  and  the  whole  establishment, 
with  plaintiff  and  wife,  were  precipitated  into  the  river,  and  the  horse 
and  buggy  were  lost.  Evidence  was  given  tending  to  show  that  the 
chain  or  barrier  at  the  outer  end  of  the  boat  was  either  not  up  or  was 
entirely  insufficient. 

AllEn^  J.^^  a  ferryman  is  not  a  common  carrier  of  property  re- 
tained by  a  passenger  in  his  own  custody  and  under  his  own  control, 
and  liable  as  such  for  all  losses  and  injuries  except  those  caused  by 
the  act  of  God  or  the  public  enemies.  The  cases  which  go  the  length 
of  holding  that  the  ferryman  is  chargeable  as  a  common  carrier  for 
the  absolute  safety  of  property  thus  carried,  and  that  the  owner,  in 
taking  care  of  the  property  during  the  passage  of  the  boat,  may  be  re- 
garded as  agent  of  the  ferryman,  do  not  stand  upon  any  just  prin- 
ciple, and  are  not  within  the  reasons  of  public  policy  upon  which 
the  extreme  liability  of  common  carriers  rests.  Among  the  cases  to 
this  effect  are  Fisher  v.  Clisbee,  12  111.  SU;^-    Powell  v.  Mills,  37 

31  Parts  of  the  opinion  have  been  omitted. 

32  in  Fisher  v.  Clisbee,  12  111.  344  (1851),  supra.  Caton,  J.,  said:  "It  is  true 
that  travelers  usually  have  a  care,  and  to  a  certain  extent  take  charge  of 
their  own  teams  and  property  while  on  the  ferryboat,  but  tliis  is  in  subor- 
dination to  the  ferryman  himself.  If  they  do  not  manage  or  dispose  of  them 
as  he  thinks  best,  he  may  take  them  entirely  out  of  their  hands  and  arrange 
them  according  to  the  dictates  of  his  own  judgment,  for  he  is  responsible 
for  their  safety.  It  is  true,  if  the  owner,  by  his  willful  and  perverse  con- 
duct, occasions  a  loss  which  would  not  otherwise  have  happened,  then  he 
cannot  charge  the  ferryman  with  a  loss  for  which  he  alone  is  responsible. 
But  while  acting  in  good  faith,  and  not  in  violation  of  the  ferryman's  com- 
mands, the  owner  may  be  considered  as  his  servant  so  far  as  he  does  manage 


Ch.  3)  CASES   NOT   WITHIN   THE    RULE.  387 

Miss.  691 ;  and  Wilson  v.  Hamilton,  4  Ohio  St.  722.  These  sugges- 
tions are  made  necessary  by  the  fact  that  the  Supreme  Court  at  Gen- 
eral Term  based  their  judgment  upon  the  doctrine  of  the  cases  re- 
ferred to,  and  to  which  we  are  not  prepared  to  assent. 

The  trial  at  the  circuit,  and  the  recovery  there,  was  upon  an  en- 
tirely different  principle,  and  one  more  in  accordance  with  our  view 
of  the  law.  While  ferrymen,  by  reason  of  the  nature  of  the  franchise 
they  exercise,  and  the  character  of  the  services  they  render  to  the 
public,  are  held  to  extreme  diligence  and  care  and  to  a  stringent  lia- 
bility for  any  neglect  or  omission  of  duty,  they  do  not  assume  all  the 
responsibility  of  common  carriers.  Property  carried  upon  a  ferry- 
boat in  the  custody  and  control  of  the  owner,  a  passenger,  is  not  at  the 
sole  risk  either  of  the  ferryman  or  the  owner.  Both  have  duties  to 
perform  in  respect  to  it.  If  lost  or  damaged  by  the  act  or  neglect  of 
the  ferryman  he  must  respond  to  the  owner.  The  ordinary  rules  gov- 
erning in  actions  for  neghgence  apply;  and  a  plaintiff  cannot  recover 
if  he  is  guilty  of  negligence  on  his  part,  contributing  to  the  loss. 

The  liability  of  a  common  carrier,  in  all  its  extent,  only  attaches 
when  there  is  an  actual  bailment,  and  the  party  sought  to  be  charged 
has  the  exclusive  custody  and  control  of  property  for  carriage.  A 
ferryman  does  not  undertake  absolutely  for  the  safety  of  goods  car- 
ried with  and  under  the  control  of  the  owner;  but  he  does  undertake 
for  their  safety  as  against  the  defects  and  insufficiencies  of  his  boat, 
and  other  appliances  for  the  performance  of  the  services,  and  for  the 
neglect  or  want  of  skill  of  himself  and  his  servants.  At  the  same  time 
the  owner  of  the  property,  retaining  the  custody  of  it,  is  bound  to  use 
ordinary  care  and  diligence  to  prevent  loss  or  injury.  *  *  *  The 
motion  for  a  nonsuit  was  properly  refused,  and  the  question  as  to  the 
alleged  negligence  on  the  part  of  the  defendant,  as  well  as  to  con- 
tributory negligence  on  the  part  of  the  plaintiff,  submitted  to  the 
jury.     *     *     * 

Judgment  affirmed. ^^ 

the  property,  after  it  has  once  jrot  into  the  boat,  and  thus  come  into  the  pos- 
session of  tiie  boatman.  *  *  *  Durin.i,'  the  trial,  evidence  was  siven  by  the 
defendant,  tending  to  show  that  Knhn.  who  was  driving  the  phiintlffs  horse 
at  the  time,  and  who  at  the  request  of  one  of  the  ferrymen,  was  holding  the 
horse  by  the  head,  was  requested  by  those  having  charge  of  the  boat,  to  un- 
hitch the  horse  from  the  carriage,  to  which  he  made  no  reply,  and  did  not 
do  so.  *  *  *  Even  if  Kuhn  had  heard  the  direction,  he  was  not  bound  to 
obey  it.  The  horse  and  carriage  were  in  the  jiossession  and  conti'ol  of  the 
ferryman,  and  Kuhn  was  under  no  more  legal  obligation  to  unhitch  the  horse 
than  he  was  to  assist  the  propelling  the  boat.  It  was  strictly  the  business 
of  the  ferrymen  to  do  all  that  was  needful  for  the  safe  transportation  of  the 
property  intrusted,  to  their  care." 

See,  also,  Evans  v.  Rudy,  34  Ark.  383  (1879) ;  Wilson  v.  Alexander,  11.5 
Tenn.  125.  88  S.  W.  93.5  (1905) ;  Atchison,  etc.,  Ry.  Co.  v.  Ditmars,  3  Kan. 
App.  459,  43  Pac.  833  (18W)).  drover  accompanying  cattle;  Robinson  v.  Dun- 
more,  2  B.  &  B.  416  (1801).  shipper's  servant  accompanying  goods  on  lighter. 

33  See,  also,  ^Yhite  v.  Winuisimmet  Co.,  7  Cush.  (Mass.)  155  (1851). 


.388  EXCEPTIONAL   LIABILITY   OF   COMMON'  CARRIER.  (Part  4 

Strong,  J.,  in  BANK  OF  KENTUCKY  v.  ADAIMS  EXPRESS 
CO.,  93  U.  S.  174,  1:7,  184,  23  L.  Ed.  872  (1876) :  "The  defendants 
in  each  of  these  cases  are  an  express  company  engaged  in  the  business 
of  carrying  for  hire  money,  goods,  and  parcels  from  one  locality  to 
another.  In  the  transaction  of  their  business  they  employ  the 
railroads,  steamboats  and  other  public  conveyances  of  the  country. 
These  conveyances  are  not  owned  by  them,  nor  are  they  subject 
to  their  control,  any  more  than  they  are  to  the  control  of  other  trans- 
porters or  passengers.  The  packages  entrusted  to  their  care  are  at 
all  times,  while  on  these  public  conveyances,  in  the  charge  of  one  of 
their  own  messengers  or  agents.  ***!{;  yv^s  so  in  the  present 
case.  The  defendants  had  an  arrangement  with  the  railroad  com- 
pany, under  which  the  packages  of  money,  inclosed  in  an  iron  safe, 
were  put  into  an  apartment  of  a  car  set  apart  for  the  use  of  the  ex- 
press company.  Yet  the  safe  containing  the  packages  continued  in 
the  custody  of  the  messenger.  Therefore,  as  between  the  defendants 
and  the  railroad  company,  it  may  be  doubted  whether  the  relation  was 
that  of  a  common  carrier  to  his  consignor,  because  the  company  had 
not  the  packages  in  charge.  The  department  in  the  car  was  the  de- 
fendants' for  the  time  being;  and,  if  the  defendants  retained  the  cus- 
tody of  the  packages  carried,  instead  of  trusting  them  to  the  com- 
pany, the  latter  did  not  insure  the  carriage.  Miles  v.  Cattle,  6  Bing. 
743 ;  Tower  v.  Utica  &  Syracuse  R.  Co.,  7  Hill  (N.  Y.)  47,  42  Am. 
Dec.  36;  Redf.  on  Railw.  §  74." 


TOWER  V.  UTICA  &  S.  R.  CO. 

(Supreme  Court  of  New  York,  1S44.     7  Hill,  47,  42  Am.  Dec.  36.) 

Trespass  on  the  case  for  the  loss  of  a  passenger's  overcoat.  The 
passenger  had  the  overcoat  on  his  arm  when  he  entered  the  railroad 
car,  and  put  it  beside  him  on  the  seat.  When  he  left  the  car  at  his 
destination  he  forgot  his  coat,  and  it  was  stolen.  Nonsuit.  Excep- 
tions, 

Nelson^  C.  J.^*  I  am  of  opinion  that  the  nonsuit  was  properly 
granted.  The  overcoat  was  not  delivered  into  the  possession  or  cus- 
tody of  the  defendants,  which  is  essential  to  their  liability  as  carriers, 
Being  an  article  of  w^earing  apparel  of  present  use,  and  in  the  care 
and  keeping  of  the  traveler  himself  for  that  purpose,  the  defendants 
have  a  right  to  say  that  it  shall  be  regarded  in  the  same  light  as  if  it 
had  been  upon  his  person.  No  carrier,  however  discreet  and  vigilant, 
■would  think  of  turning  his  attention  to  property  of  the  passenger  in 
the  situation  of  the  article  in  question,  or  imagine  that  any  responsibil- 

3  4  The  statement  of  facts  has  been  rewritten,  and  part  of  the  opinion  omit- 
ted. 


Ch.  3)  CASKS   NOT    WITHIN    THE    RULE.  389 

ity  attached  to  him  in  respect  to  it.  Even  an  innkeeper  is  not  liable 
where  the  guest  takes  the  goods  to  his  room  for  the  purpose  of  having 
the  care  of  them  himself.  Burgess  v.  Clements,  4  Maule  &  Selw.  300 ; 
Jer.  Law  of  Carr.  150,  156. 

Again,  all  the  books  agree  that  if  the  negligence  of  the  passenger 
conduces  to  the  loss  of  the  goods,  the  carrier  is  not  responsible. 
Whalley  v.  Wray,  3  Esp.  74;  Jer.  Law  of  Carr.  55,  156.  Now  the 
loss  in  this  case  occurred  through  the  gross  neglect  of  the  plaintiff. 
*     *     * 

New  trial  denied.^* 


CLARK  V.  BURNS. 

(Supreme  Judicial  Court  of  Mossacliusetts,  1875.     118  Mass.  275,  19  Am. 

Kep.  4.jG.) 

Contract  for  the  value  of  a  watch  against  the  owners  of  a  steamship 
as  common  carriers,  with  counts  in  tort  for  negligence,  and  also  counts 
charging  them  as  innkeepers.  The  case  was  submitted  on  a  statement 
of  facts,  in  which  it  was  agreed  that  the  plaintiff,  a  passenger  on  de- 
fendants' transatlantic  steamer,  hung  his  waistcoat  on  a  hook  in  his 
stateroom  one  evening  when  he  went  to  bed,  leaving  in  the  watch 
pocket  a  watch  which  he  wore  by  day.  Next  morning  the  watch  was 
missing.  There  was  no  means  of  fastening  the  stateroom  door,  and 
defendants'  rules,  as  plaintiff  had  learned  on  previous  voyages,  for- 
bade fastening  the  doors,  in  order  that  stewards  might  at  all  times 

3s  In  Weiugart  v.  Pullmau  Co.,  .j8  Misc.  Rep.  187,  108  X.  Y.  Supp.  972 
(1908),  plaintiff,  a  passenger  over  the  Peimsylvauia  Railroad,  bought  of  de- 
fendant a  ticlvet  for  a  seat  in  a  parlor  car.  The  court  said:  "Just  before 
entering  the  car  he  cave  his  overcoat  to  defendant's  jiorter.  and  told  the 
porter  to  put  it  on  the  seat  plaintiff  had  engaged  in  defendant's  said  car. 
He  followed  the  porter  into  the  car,  and  saw  him  place  the  overcoat  on  the 
said  seat.  Plaintiff  then  went  into  another  car,  and  remained  about  an  hour 
and  a  half,  when  he  returned  to  the  seat  in  defendant's  said  car  and  found 
that  his  overcoat  was  gone.  *  *  *  Under  these  circumstances  the  mere 
unexplained  disappearance  of  the  coat  did  not  estal)lish  defendant's  liability  ; 
but  it  was  incumbent  on  plaintiff  to  show  negligence  on  the  part  of  defend- 
ant." 

In  Great  Western  Ry.  Co.  v.  Bunch.  13  A.  C.  31  (1888).  Lord  Watson,  in 
spealcing  of  the  carriage  of  luggage  by  English  railways,  said:  "  *  *  * 
Eminent  judges  have  differed  as  to  the  nature  of  tlie  contract  under  which 
hand  luggage  is  carried,  some  being  of  opinion  that  It  is.  from  first  to  last,  a 
contract  to  carry  such  luggage  on  the  same  terms  as  its  owner ;  that  is  to 
say.  with  ordinary  care,  others  being  of  opinion  that  it  is  throughout  a  con- 
tract of  conuuon  carriage,  modified  by  the  personal  interference  of  tlie  pas- 
senger. *  *  *  I  tliinlv  the  contract  ouglit  to  be  regarded  as  one  of  com- 
mon carriage,  subject  to  this  modification,  that  in  respect  of  his  interference 
with  their  exclusive  control  of  his  luggage,  the  company  are  not  liable  for 
any  loss  or  injury  occurring  during  its  transit  to  which  the  act  or  default  of 
the  passenger  has  been  contributory."  The  defendant  was  accordingly  held 
liable,  irrespective  of  negligence,  for  the  disappearance  of  a  bag  which  a  pas- 
senger gave  a  porter  to  put  into  his  compartment  in  the  carriage  while  he 
went  to  buy  a  ticket. 


390  EXCEPTIONAL   LIABILITY   OF   COMMON  CARUIEIl.  (Fait  -i 

have  access  to  the  rooms.  The  trial  court  ruled  that  plaintiff  could 
not  maintain  the  action.     Plaintiff  alleged  exceptions. 

Gray,  C.  J.^®  The  liabilities  of  common  carriers  and  innkeepers, 
though  similar,  are  distinct.  No  one  is  subject  to  both  liabilities  at 
the  same  time,  and  with  regard  to  the  same  property.  The  liability  of 
an  innkeeper  extends  only  to  goods  put  in  his  charge  as  keeper  of  a 
public  house,  and  does  not  attach  to  a  carrier  who  has  no  house  and 
is  engaged  only  in  the  business  of  transportation.  The  defendants, 
as  owners  of  steamboats  carrying  passengers  and  goods  for  hire,  were 
not  innkeepers.  They  would  be  subject  to  the  liability  of  common 
carriers  for  the  baggage  of  passengers  in  their  custody,  and  might 
perhaps  be  so  liable  for  a  watch  of  the  passenger  locked  up  in  his  trunk 
with  other  baggage.  But  a  watch,  worn  by  a  passenger  on  his  person 
by  day,  and  kept  by  him  within  reach  for  use  at  night,  whether  re- 
tained upon  his  person,  or  placed  under  his  pillow,  or  in  a  pocket  of  his 
clothing  hanging  near  him,  is  not  so  intrusted  to  their  custody  and  con- 
trol as  to  make  them  liable  for  it  as  common  carriers.  Steamboat  Crys- 
tal Palace  v.  Vanderpool,  16  B.  Mon.  (Ky.)  302 ;  Tower  v.  Utica  Rail- 
road, 7  Hill  (N.  Y.)  47.  42  Am.  Dec.  36  [ante,  p.  388]  ;  Abbott  v.  Brad- 
street,  55  Me.  530  ;  Pullman  Palace  Car  Co.  v.  Smith,  7  Chi.  Leg.  N.  237. 

Whether  the  defendants'  regulations  as  to  keeping  the  doors  of  the 
staterooms  unlocked,  the  want  of  precautions  against  theft,  and  the 
other  facts  agreed,  were  sufficient  to  show  negligence  on  the  part  of 
the  defendants,  was,  taking  the  most  favorable  view  for  the  plaintiff, 
a  question  of  fact,  upon  which  the  decision  of  the  court  below  was  con- 
clusive.    Fox  V.  Adams  Express  Co.,  116  Mass.  292. 

Exceptions  overruled. 


ADAMS   V.   NEW   JERSEY   STEAMBOAT   CO. 

(Court  of  Appeals  of  New  'York,  1890.     151  N.  Y.  163,  45  N.  E.  300,  34  L.  R. 
A.  682,  56  Am.  St.  Rep.  616.) 

O'Brien,  J."  On  the  night  of  the  17th  of  June,  1889,  the  plain- 
tiff was  a  cabin  passenger  from  New  York  to  Albany  on  the  defend- 
ant's steamer  Drew,  and  for  the  usual  and  regular  charge  was  as- 
signed to  a  stateroom  on  the  boat.  The  plaintiff's  ultimate  destination 
was  St.  Paul,  in  the  state  of  Minnesota,  and  he  had  upon  his  person 
the  sum  of  $160  in  money  for  the  purpose  of  defraying  his  expenses 
of  the  journey.  The  plaintiff,  on  retiring  for  the  night,  left  this 
money  in  his  clothing  in  the  stateroom,  having  locked  the  door  and 
fastened  the  windows.  During  the  night  it  was  stolen  by  some  per- 
son, who  apparently  reached  it  through  the  window  of  the  room.  The 
plaintiff's  relations  to  the  defendant  as  a  passenger,  the  loss  without 

36  The  statement  of  facts  has  been  rewritten. 
8  7  Parts  of  the  opinion  have  been  omitted. 


Ch.  3)  CASES    NOT   WITHIN    THE    RULE.  391 

negligence  on  his  part,  and  the  other  fact  that  the  sum  lost  was  rea- 
sonable and  proper  for  him  to  carry  upon  his  person  to  defray  the 
expenses  of  the  journey,  have  all  been  found  by  the  verdict  of  the  jury 
in  favor  of  the  plaintiff.  The  appeal  presents,  therefore,  but  a  single 
question,  and  that  is  whether  the  defendant  is,  in  law,  liable  for  this 
loss  without  any  proof  of  negligence  on  its  part.  The  learned  trial 
judge  instructed  the  jury  that  it  was,  and  the  jury,  after  passing  upon 
the  other  questions  of  fact  in  the  case,  rendered  a  verdict  in  favor 
of  the  plaintiff  for  the  amount  of  money  so  stolen.  The  judgment 
entered  upon  the  verdict  was  affirmed  at  General  Term,  and  that 
court  has  allowed  an  appeal  to  this  court. 

The  defendant  has,  therefore,  been  held  liable  as  an  insurer  against 
the  loss  which  one  of  its  passengers  sustained  under  the  circumstances 
stated.  The  principle  upon  which  innkeepers  are  charged  by  the  com- 
mon law  as  insurers  of  the  money  or  personal  effects  of  their  guests 
originated  in  public  policy.  It  was  deemed  to  be  a  sound  and  neces- 
sary rule  that  this  class  of  persons  should  be  subjected  to  a  high  de- 
gree of  responsibility  in  cases  where  an  extraordinary  confidence  is 
necessarily  reposed  in  them,  and  where  great  temptation  to  fraud  and 
danger  of  plunder  exists  by  reason  of  the  peculiar  relations  of  the 
parties.  Story,  Bailm.  §  46-1;  2  Kent,  Comm.  592;  Hulett  v.  Swift, 
33  N.  Y.  571,  88  Am.  Dec.  405.  The  relations  that  exist  between  a 
steamboat  company  and  its  passengers,  who  have  procured  staterooms 
for  their  comfort  during  the  journey,  diff'er  in  no  essential  respect 
from  those  that  exist  between  the  innkeeper  and  his  guests.  The 
passenger  procures  and  pays  for  his  room  for  the  same  reasons  that 
a  guest  at  an  inn  does.  There  are  the  same  opportunities  for  fraud 
and  plunder  on  the  part  of  the  carrier  that  was  originally  supposed  to 
furnish  a  temptation  to  the  landlord  to  violate  his  duty  to  the  guest. 

It  was  held  in  Carpenter  v.  Railroad  Co.,  124  N.  Y.  53,  26  N.  E. 
277,  11  L.  R.  A.  759,  21  Am.  St.  Rep.  644,  that  a  railroad  running 
sleeping  coaches  on  its  road  was  not  liable  for  the  loss  of  money  taken 
from  a  passenger  while  in  his  berth,  during  the  night,  without  some 
proof  of  negligence  on  its  part.  That  case  does  not,  we  think,  control 
the  question  now  under  consideration.  Sleeping-car  companies  are 
neither  innkeepers  nor  carriers.  A  berth  in  a  sleeping  car  is  a  con- 
venience of  modern  origin,  and  the  rules  of  the  common  law  in  regard 
to  carriers  or  innkeepers  have  not  been  extended  to  this  new  relation. 
This  class  of  conveyances  are  attached  to  the  regular  trains  upon  rail- 
roads for  the  purpose  of  furnishing  extra  accommodations,  not  to 
the  public  at  large,  nor  to  all  the  passengers,  but  to  that  limited  number 
who  wish  to  pay  for  them.  The  contract  for  transportation,  and  lia- 
bility for  loss-  of  baggage,  is  with  the  railroad,  the  real  carrier.  All 
the  relations  of  passenger  and  carrier  are  established  by  the  contract 
implied  in  the  purchase  of  the  regular  railroad  ticket,  and  the  sleeping 
car  is  but  an  adjunct  to  it  only  for  such  of  the  passengers  as  wish  to 


,^02  EXCEPTIONAL   LIABILITY   OP   COMMON  CARRIER.  (Part   4 

pay  an  additional  charge  for  the  comfort  and  luxury  of  a  special  apart- 
ment in  a  special  car.     *     *     * 

But  it  is  only  upon  the  ground  of  negligence  that  the  railroad  com- 
pany can  be  held  liable  to  the  passenger  for  money  stolen  from  his 
person  during  the  journey.  The  ground  of  the  responsibility  is  the 
same  as  to  all  the  passengers,  whether  they  use  sleeping  berths  or  not, 
though  the  degree  of  care  required  may  be  different.  Some  proof 
must  be  given  that  the  carrier  failed  to  perform  the  duty  of  protection 
to  the  passenger  that  is  implied  in  the  contract,  before  the  question  of 
responsibility  can  arise,  whether  the  passenger  be  in  one  of  the  sleep- 
ing berths,  or  in  a  seat  in  the  ordinary  car.  The  principle  upon  which 
the  responsibility  rests  is  the  same  in  either  case,  though  the  degree  of 
care  to  which  the  carrier  is  held  may  be  different.  That  must  be  meas- 
ured by  the  danger  to  which  the  passenger  is  exposed  from  thieves, 
and  with  reference  to  all  the  circumstances  of  the  case. 

The  carrier  of  passengers  by  railroad,  whether  the  passenger  be 
assigned  to  the  ordinary  coaches  or  to  a  berth  in  a  special  car,  has 
never  been  held  to  that  high  degree  of  responsibility  that  governs  the 
relations  of  innkeeper  and  guest;  and  it  would  perhaps  be  unjust  to  so 
extend  the  liability,  when  the  nature  and  character  of  the  duties  which 
it  assumes  are  considered.  But  the  traveler  who  pays  for  his  pas- 
sage, and  engages  a  room,  in  one  of  the  modern  floating  palaces  that 
cross  the  sea  or  navigate  the  interior  waters  "of  the  country,  establishes 
legal  relations  with  the  carrier  that  cannot  well  be  distinguished  from 
those  that  exist  between  the  hotel  keeper  and  his  guests.  The  carrier 
in  that  case  undertakes  to  provide  for  all  his  wants,  including  a  private 
room  for  his  exclusive  use,  which  is  to  be  as  free  from  all  intrusion 
as  that  assigned  to  the  guest  at  a  hotel.  The  two  relations,  if  not 
identical,  bear  such  close  analogy  to  each  other  that  the  same  rule  of 
responsibility  should  govern. 

We  are  of  the  opinion,  therefore,  that  the  defendant  was  properly 
held  liable  in  this  case  for  the  money  stolen  from  the  plaintiff,  with- 
out any  proof  of  negligence.  The  judgment  should  be  afffrmed.  All 
concur.     Judgment  affirmed.^* 

3  8  In  McKee  v.  Owen,  15  Mich.  115  (186G),  an  action  against  a  common 
carrier  by  steamboat  for  money  stolen  from  a  stateroom  while  its  owner  was 
asleep.  Christiancy,  J.,  said:  "In  Van  Horn  v.  Kermit  (N.  Y.  Com.  PI.)  4  E. 
D.  Smith,  454,  the  doctrine  that  to  hold  shipowners  liable  for  baggage  it  must 
be  placed  beyond  the  passenger's  reach,  in  the  special  charge  of  the  othcers  of 
the  ship,  is  expressly  denied,  because  the  passenger  must  necessarily  require 
access  to  it,  and  unless  particularly  enjoined  to  deposit  it  in  some  other  place 
on  shipboard,  there  is  no  place  more  appropriate  than  the  stateroom  or  cabin 
assigned  to  him  for  use  during  the  voyage.  *  *  «  a  trunk  actually  de- 
livered into  the  hands  of  the  carriers  may  often  be  required  by  the  passenger 
on  the  way,  and  when  he  obtains  access  to  it,  has  it  in  his  own  hands,  or  opens 
it  to  take  out  or  put  in  articles,  it  is  in  his  own  custody  pro  hac  vice,  and  for 
a  loss  occurring  at  such  moments  the  carrier  would  not  ordinarily  be  respon- 
sible; and  yet  the  moment  it  goes  back  into  the  custody  of  the  carrier,  his 
responsibility  revives.  And  so  in  the  present  case,  while  the  plaintiff  was 
up  with  the  clothing  on  her  person,  it  was  in  her  own  custody ;    but  wheu 


Ch.  3)  CASES  NOT   WITHIN    THE    RULE.  393 


PARKER  V.  NORTH  GERMAN  LLOYD  STEA^ISHIP  CO. 

(Supreme  Court,  Appellate  Division,  SeeoucI  Department,  1902.     74  App.  Div. 
16,  76  N.  Y.  Supp.  806.) 

HiRSCHBERG,  J.^^  *  *  *  f^g  evidence  establishes  the  facts 
*  *  *  that  while  in  course  of  transportation  to  said  place  said 
trunks  were  detained  in  England  at  Queensboro  Pier,  at  the  mouth 
of  the  river  Thames,  for  inspection  by  the  British  customs  authori- 
ties ;  that  notice  of  their  arrival  was  sent  to  the  plaintiff,  but  that  be- 
fore their  removal,  and  while  they  were  still  in  the  custody  of  the 
customs  authorities,  the  trunks  and  the  pier  on  which  they  lay  were 
destroyed  by  fire;  and  that  the  plaintiff's  wife,  before  the  suit  was 
brought,  duly  assigned  to  him  her  claim  and  cause  of  action.     *    *    * 

But,  aside  from  the  general  question  of  the  defendant's  liability  un- 
der the  terms  of  the  receipt,  I  think  the  peril  which  destroyed  the 
property  was  beyond  any  guaranty  assumed.  The  case  of  Howell  v. 
Railway  Co.,  92  Hun,  423,  36  N.  Y.  Supp.  544.  seems  quite  decisive. 
There  the  plaintiff  had  purchased  a  ticket  at  Blythe,  Canada,  for  pas- 
sage over  the  defendant's  road  to  Suspension  Bridge,  in  this  state,  and 
his  baggage,  checked  for  the  same  destination,  was  destroyed  by  fire 
at  the  custom  house  in  the  latter  place  on  the  night  of  its  arrival.  In 
holding  that  the  plaintiff  could  not  recover  the  amount  of  his  loss 
from  the  common  carrier,  the  court  said  (92  Hun,  424,  36  N.  Y.  Supp. 
544)  :  "Prior  to  the  fire,  and  on  its  arrival  at  Suspension  Bridge, 
the  baggage  was  taken  into  the  possession  of  the  customs  officers  of 
the  United  States,  pursuant  to  the  statute  and  regulations  of  that  gov- 
ernment relating  to  customs,  and  remained  in  the  possession  and  cus- 
tody of  those  officers  in  the  room  appropriated  to  such  purpose  at  the 
time  of  the  loss  by  fire  which  destroyed  the  building  in  which  the  bag- 
gage then  was.     The  property  was  not  in  the  possession  or  under  the 

laid  aside  in  her  room,  while  she  slept,  it  was.  as  I  have  endeavored  to  show, 
in  the  custody  of  the  defendants  as  carriers."  The  court  was  equally  divided, 
and  judgment  for  the  carrier  was  affirmed. 

In  Nashville,  etc..  By.  Co.  v.  Lillie,  112  Tenn.  3.31,  78  S.  W.  10.">.5.  10."»  Am. 
St.  Rep.  947  (1903),  Wilkes,  .7.,  said:  "Unless  the  passenger  shall  assume  and 
retain  the  exclusive  possession  and  control  of  the  baggage,  and  either  directly 
or  impliedly  deny  any  right  of  possession  or  custody  to  the  employes  of  the 
road,  the  baggage  must  be  considered  as  being  in  the  possession  of  the  em- 
ployes of  the  sleeping  car  company,  who  are  at  the  same  time  employ(^s  of  the 
railroad  company.  *  *  *  if  the  baggage  is  deposited  under  the  berth, 
or  over  it,  or  at  any  other  convenient  place,  when  the  passenger  retires  for 
sleep,  it  must  be  considered  as  in  the  custody  of  the  employes  of  the  road, 
and  the  railroad  company  must  be  considered  as  insuring  its  safety." 

That  articles  in  a  passenger's  stateroom  may  be  so  in  the  carrier's  custody 
as  to  make  him  liable  for  loss  without  fault,  see  Mudgett  v.  Steamboat  Co., 
1  Daly,  151  (1861) ;  Gore  v.  Transp.  Co.,  2  Daly,  2.54  (1867) ;  Gleason  v.  Good- 
rich Trans.  Co.,  32  Wis.  8.5.  14  Am.  Rep.  716  (1873).  But  see  Am.  S.'S.  Co.  v. 
Brvan,  83  Pa.  440  (1877) ;  The  Humboldt  (D.  C.)  97  Fed.  656  (1S99) ;  The  R.  E. 
Lee,  2  Abb.  49.  Fed.  Cas.  No.  11.090  (1870). 

3  9  Parts  of  the  opinion  are  omitted.  An  extract  upon  another  point  is  print- 
ed ante,  p.  22,  note  3. 


o94  EXCEPTIONAL   LIACILITT   OF   COMMON  CARRIER.  (Part  4 

control  of  the  defendant  at  the  time  of  the  loss,  nor  was  it  in  any  sense 
the  fault  of  the  defendant  that  it  was  not  so.  On  the  arrival  from 
Canada  into  the  state  of  New  York  it  was  taken  into  the  possession  of 
such  customs  ofificers,  as  was  usual,  and  required  by  the  customs  and 
navigation  laws  of  the  United  States  and  the  regulations  adopted  by 
the  secretary  of  the  treasury  pursuant  to  such  laws.  The  defendant, 
therefore,  is  not  liable  as  a  common  carrier  for  the  loss,  unless  it  may, 
for  some  cause,  be  attributable  to  its  negligence.  It  is  not  claimed 
that  the  fire  was  chargeable  to  any  fault  on  its  part." 

This  reasoning  applies  to  the  case  at  bar,  and  is  equally  applicable 
where  the  fire  occurs  in  transit  as  where  it  occurs  in  the  custom  house 
at  the  place  of  destination.  There  is  no  proof  of  deviation  and  noth- 
ing tending  in  any  way  to  charge  the  defendant,  directly  or  indirectly, 
with  the  fire  at  Queensboro  Pier.  The  parties  must  be  presumed  to 
have  contracted  with  the  common  knowledge  of  the  necessity  for  cus- 
toms detention  and  inspection,  and  the  burden  was  on  the  plaintiff  to 
make  provision  for  the  passage  of  his  property  beyond  the  borders 
of  the  foreign  territory  if  nondutiable.  The  defendant  was  wholly 
powerless  to  prevent  its  seizure  and  detention,  and  on  the  authority 
of  the  case  cited  cannot  be  held  liable  for  its  destruction,  while  in  the 
possession  of  the  foreign  government,  by  a  fire  which  it  did  not  occa- 
sion, and  which  it  could  not,  by  any  possible  act  of  diligence,  have  pre- 
vented.    *     *     * 

The  judgment  should  be  reversed.*" 

40  Compare  cases  p.  317,  note  4. 

For  other  cases  not  within  the  rule  of  exceptional  liability,  see  Transporta- 
tion Not  Within  the  Contract  of  Carriage,  ante,  p.  88;  Excuses  for  Failure  to 
Transport  and  Deliver,  ante,  p.  113. 


Ch.  4)  LliMITATlON    OF   LIABILITY.  393 

CHAPTER  IV 
LIMITATION  OF  LIABILITY 


SECTION  1.— LHIITATION  OF  LIABILITY  BY  NOTICE 


HOLLISTER  v.  NOWLEN. 

(Supreme  Comt  of  New  York,  1838.     19  AVeud.  234,  32  Am.  Dec.  4.j5.) 

This  was  an  action  against  the  defendant  as  a  common  carrier  for 
the  loss  of  the  plaintiff's  trunk  and  contents.  •  A  case  was  agreed  on 
between  the  parties  stating  the  following  facts : 

The  defendant  was  a  member  of  a  company,  the  proprietors  of  the 
three  daily  lines  of  stagecoaches  running  between  Canandaigua  and 
Buffalo,  one  of  which  was  called  the  Telegraph  line.  *  *  *  Qn  the 
20th  July,  1833,  before  daylight  in  the  morning,  the  plaintiff  left 
Avon  in  the  defendant's  coach  on  his  way  to  Buffalo.  The  trunk 
was  placed  in  the  boot  behind  the  coach,  which  was  carefully  secured 
by  strong  leather  covering,  fastened  with  strong  leather  straps,  and 
buckles,  and  was  made  secure  against  any  loss  except  by  violence. 
After  proceeding  about  three  miles  it  was  discovered  that  the  straps 
confining  the  cover  of  the  boot  had  been  cut,  and  the  plaintiff's  trunk 
with  its  contents  had  been  feloniously  stolen  and  carried  oft'.  There 
was  no  negligence  on  the  part  of  the  defendant  or  his  servants  in 
relation  to  the  trunk,  further  than  may  be  implied  from  the  facts 
above  stated.  The  plaintiff  left  the  stage,  went  back  to  Avon,  and 
reported  his  loss;  and  the  defendant  offered  a  reward,  and  made  all 
proper  efforts  for  the  recovery  of  the  property,  but  without  success. 

The  Telegraph  line  was  established  in  1828.  A  public  notice 
that  baggage  sent  or  carried  in  the  Telegraph  line  would  be  at  the 
risk  of  the  owner  thereof,  printed  on  a  large  sheet,  had  been  uni- 
formly kept  placarded  in  most  of  the  stage  offices  and  public  houses 
from  Albany  to  Buffalo;  and  particularly  such  notice  had  been  con- 
tinually affixed  up  in  the  stage  office  and  principal  public  houses  at 
Utica,  where  the  plaintiff  had  resided  for  the  last  three  years  before 
the  trunk  was  lost.  It  was  stipulated  that  should  the  court  be  of 
opinion  that  the  plaintiff  was  entitled  to  recover,  judgment  should  be 
entered  in  his  favor  for  $116.75,  and  interest  from  July  20,  1833,  be- 
sides costs. 

Bronson,  j.i  *  *  *  I  should  be  content  to  place  my  opinion  up- 
on the  single  ground  that  if  a  notice  can  be  of  any  avail,  it  must  be 

1  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


396  EXCErTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

directly  brought  home  to  the  owner  of  the  property;  and  that  there 
was  no  evidence  in  this  case  which  could  properly  be  submitted  to  a 
jury  to  draw  the  inference  that  the  plaintiff  knew  on  what  terms  the 
coach  proprietor  intended  to  transact  his  business.  But  other  ques- 
tions have  been  discussed;  and  there  is  another  case  before  the  court 
where  the  judge  at  the  circuit  thought  the  evidence  sufficient  to  charge 
the  plaintiff  with  notice.  It  will  therefore  be  proper  to  consider  the 
other  questions  which  have  been  made  by  the  counsel. 

Can  a  common  carrier  restrict  his  liability  by  a  general  notice,  in 
any  form,  brought  home  to  the  opposite  party?  *  *  *  The  doc- 
trine that  a  carrier  might  limit  his  responsibility  by  a  general  notice 
brought  home  to  the  employer,  prevailed  in  England  for  only  a  short 
period.  In  Smith  v.  Home,  8  Taunt.  14J:,  Burrough,  J.,  said :  "The 
doctrine  of  notice  was  never  known  until  the  case  of  Forward  v. 
Pittard,  1  T.  R.  27,  which  I  argued  many  years  ago."  That  case 
was  decided  in  1785,  and  it  is  remarkable  that  it  does  not  contain  one 
word  on  the  subject  of  notice.  If  that  question  was  in  any  form  be- 
fore the  court,  it  is  not  mentioned  by  the  reporter;  and  the  decision 
was  against  the  carrier,  although  the  loss  was  occasioned  by  fire,  with- 
out his  default.  The  doctrine  was  first  recognized  in  Westminster 
Hall  in  1804,  when  the  case  of  Nicholson  v.  Willan,  5  East,  507,  was 
decided.  Lord  EHenborough  said,  the  practice  of  making  a  "special 
acceptance"  had  prevailed  for  a  long  time,  and  that  there  was  "no  case 
to  be  met  with  in  the  books  in  which  the  right  of  a  carrier  thus  to 
limit  by  special  contract  his  own  responsibility  has  ever  been  by  ex- 
press decision  denied." 

Whatever  may  be  the  rule  where  there  is  in  fact  a  special  contract, 
the  learned  judge  could  not  have  intended  to  say,  that  a  carrier  had 
for  a  long  time  been  allowed  to  limit  his  liability  by  a  general  notice, 
or  that  a  special  contract  had  been  implied  from  such  a  notice ;  for 
he  refers  to  no  case  in  support  of  the  position,  and  would  have  search- 
ed in  vain  to  find  one.  Only  eleven  years  before  (in  1793),  Lord 
Kenyon  had  expressly  laid  down  a  different  rule  in  Hide  v.  Propri- 
etors, etc.  1  Esp.  R.  36.  He  said:  "There  is  a  difference  where  a 
man  is  chargeable  by  law  generally,  and  where  on  his  contract.  W' here 
a  man  is  bound  to  any  duty  and  chargeable  to  a  certain  extent  by  the 
operation  of  law,  in  such  case,  he  cannot  by  any  act  of  his  own  dis- 
charge himself."  And  he  put  the  case  of  common  carriers,  and  said, 
they  cannot  discharge  themselves  "by  any  act  of  their  own,  as  by  giv- 
ing notice,  for  example,  to  that  effect."  This  case  was  afterwards 
before  the  King's  Bench,  but  on  another  point.     1  T.  R.  389. 

The  doctrine  in  question  was  not  received  in  Westminster  Hall 
without  much  doubt;  and  although  it  ultimately  obtained  something 
like  a  firm  footing,  many  of  the  English  judges  have  expressed  their 
regret  that  it  was  ever  sanctioned  by  the  courts.  Departing  as  it  did 
from  the  simplicity  and  certainty  of  the  common-law  rule,  it  proved 
one  of  the  most  fruitful  sources  of  legal  controversy  which  has  ex- 


Ch.  4)  LIMITATION    OP   LIABILITY.  397 

istecl  in  modern  times.  When  it  was  once  settled  that  a  carrier  might 
restrict  his  habihty  by  a  notice  brought  home  to  his  employer,  a  mul- 
titude of  questions  sprung  up  in  the  courts  which  no  human  foresight 
could  have  anticipated.  Each  carrier  adopted  such  a  form  of  notice 
as  he  thought  best  calculated  to  shield  himself  from  responsibility 
without  the  loss  of  employment;  and  the  legal  effect  of  each  particu- 
lar form  of  notice  could  only  be  settled  by  judicial  decision. 

Whether  one  who  had  given  notice  that  he  would  not  be  answer- 
able for  goods  beyond  a  certain  value  unless  specially  entered  and 
paid  for,  was  liable  in  case  of  loss  to  the  extent  of  the  value  men- 
tioned in  the  notice,  or  was  discharged  altogether;  whether,  notwith- 
standing the  notice,  he  was  liable  for  a  loss  by  negligence,  and  if  so, 
what  degree  of  negligence  would  charge  him;  what  should  be  suf- 
ficient evidence  that  the  notice  came  to  the  knowledge  of  the  em- 
ployer, whether  it  should  be  left  to  the  jury  to  presume  that  he  saw 
it  in  a  newspaper  which  he  was  accustomed  to  read,  or  observed  it 
posted  up  in  the  office  where  the  carrier  transacted  his  business ;  and 
then  whether  it  was  painted  in  large  or,  small  letters,  and  whether 
the  owner  went  himself  or  sent  his  servant  with  the  goods,  and  wheth- 
er the  servant  could  read — these  and  many  other  questions  were  de- 
bated in  the  courts,  while  the  public  suffered  an  almost  incalculable 
injury  in  consequence  of  the  doubt  and  uncertainty  which  hung  over 
this  important  branch  of  the  law.  See  1  Bell's  Com.  474.  After 
years  of  litigation,  Parliament  interfered  in  1830  and  relieved  both 
the  courts  and  the  public,  by  substantially  reasserting  the  rule  of  the 
common  law.     St.  1  Wm.  IV,  c.  6S. 

Without  going  into  a  particular  examination  of  the  English  cases, 
it  is  sufficient  to  say  that  the  question  has  generally  been  presented. 
on  a  notice  by  the  carrier  that  he  would  not  be  responsible  for  any 
loss  beyond  a  certain  sum,  unless  the  goods  were  specially  entered 
and  paid  for ;  and  the  decisions  have  for  the  most  part  only  gone  far 
enough  to  say  that  if  the  owner  do  not  comply  with  the  notice  by 
stating  the  true  value  of  the  goods  and  having  them  properly  entered, 
the  carrier  will  be  discharged.  In  these  cases,  the  carrier  had  not 
attempted  to  exclude  all  responsibility. 

But  there  are  two  nisi  prius  decisions  which  allow  the  carrier  to 
cast  off  all  liability  whatever.  In  Maving  v.  Todd,  1  Stark.  R.  72, 
the  defendant  had  given  notice  that  he  would  not  answer  for  a  loss 
by  fire,  and  such  a  loss  having  occurred.  Lord  EHenborough  thought 
that  carriers  might  exclude  their  liability  altogether,  and  nonsuited 
the  plaintiff.  In  Leeson  v.  Holt,  1  Stark.  R.  186,  tried  in  1816,  he 
made  a  like  decision;  though  he  very  justly  remarked,  that  "if  this 
action  had  been  brought  twenty  years  ago,  the  defendant  would  have 
been  liable ;  since  by  the  common  law  a  carrier  is  liable  in  all  cases 
except  two."  We  have  here,  what  will  be  found  in  many  of  the  cases, 
a  very  distinct  admission  that  the  courts  had  departed  from  the  law 


398  EXCErxiONAL   LIABILITY   OF   COMMON  CARRIER.  (Part    4 

of  the  land,  and  allowed  what  Jeremy's  Treatise  on  Carriers,  35,  6, 
very  properly  terms  "recent  innovations." 

Some  of  the  cases  which  have  arisen  under  a  general  notice  have 
proceeded  on  the  ground  of  fraud  (Batson  v.  Donovan,  4  B.  &  Aid. 
21) ;  others  on  the  notion  of  a  special  acceptance  or  special  contract 
(Nicholson  v.  Willan,  5  East,  507;  Harris  v.  Packwood,  3  Taunt. 
271) ;  while  in  some  instances  it  is  difficult  to  say  what  general  prin- 
ciple the  court  intended  to  establish. 

So  far  as  the  cases  have  proceeded  on  the  ground  of  fraud,  and 
can  properly  be  referred  to  that  head,  they  rest  on  a  solid  founda- 
tion ;  for  the  common  law  abhors  fraud,  and  will  not  fail  to  overthrow 
it  in  all  the  forms,  whether  new  or  old,  in  which  it  may  be  manifested. 
As  the  carrier  incurs  a  heavy  responsibility,  he  has  a  right  to  demand 
from  the  employer  such  information  as  will  enable  him  to  decide  on 
the  proper  amount  of  compensation  for  his  services  and  risk,  and 
the  degree  of  care  which  he  ought  to  bestow  in  discharging  his  trust ; 
and  if  the  owner  give  an  answer  which  is  false  in  a  material  point, 
the  carrier  will  be  absolved  from  the  consequences  of  any  loss  not  oc- 
casioned by  negligence  or  misconduct.    *     *    * 

But  it  is  enough  for  this  case,  that  the  question  of  fraud  can  never 
arise  under  such  a  notice  as  was  given  by  the  defendant.  He  did  not 
say  to  the  public  that  he  would  not  be  answerable  for  baggage  be- 
yond a  certain  sum,  unless  the  owner  disclosed  the  value ;  he  said 
he  would  not  be  answerable  in  any  event.  It  was,  in  effect,  a  notice 
that  he  would  not  abide  the  liabilities  which  the  law,  upon  principles 
of  public  policy,  had  attached  to  his  employment.  If  the  notice  can 
aid  the  defendant  in  any  form,  it  certainly  does  not  go  to  the  ques- 
tion of  fraud. 

The  only  remaining  ground  of  argument  in  favor  of  the  carrier, 
is,  th^t  a  special  contract  may  be  inferred  from  the  notice.  Inde- 
pendent of  the  modern  English  cases,  it  seems  never  to  have  been  di- 
rectly adjudged  that  the  liability  of  the  carrier  can  be  restricted  by 
a  special  contract.    *    *     * 

But,  conceding  that  there  may  be  a  special  contract  for  restricted 
liability,  such  a  contract  cannot,  I  think,  be  inferred  from  a  general 
notice  brought  home  to  the  employer.  The  argument  is,  that  where 
a  party  delivers  goods  to  be  carried  after  seeing  a  notice  that  the 
carrier  intends  to  limit  his  responsibility,  his  assent  to  the  terms  of 
the  notice  may  be  implied.  But  this  argument  entirely  overlooks  a 
very  important  consideration.  Notwithstanding  the  notice,  the  owner 
has  a  right  to  insist  that  the  carrier  shall  receive  the  goods  subject 
to  all  the  responsibilities  incident  to  his  employment.  If  the  delivery 
of  goods  under  such  circumstances  authorizes  an  implication  of  any 
kind,  the  presumption  is  as  strong,  to  say  the  least,  that  the  owner 
intended  to  insist  on  his  legal  rights,  as  it  is  that  he  was  willing  to 
yield  to  the  wishes  of  the  carrier.     If  a  coat  be  ordered  from  a  me- 


Ch.  4)  LIMITATION    OF   LIABILITY.  399 

chanic  after  he  has  given  the  customer  notice  that  he  will  not  furnish 
the  article  at  a  less  price  than  one  hundred  dollars,  the  assent  of 
the  customer  to  pay  that  sum,  though  it  be  double  the  value,  may 
perhaps  be  implied;  but  if  the  mechanic  had  been  under  a  legal  ob- 
ligation not  only  to  furnish  the  coat,  but  to  do  so  at  a  reasonable  price, 
no  such  implication  could  arise. 

Now  the  carrier  is  under  a  legal  obligation  to  receive  and  convey 
the  goods  safely,  or  answer  for  the  loss.  He  has  no  right  to  pre- 
scribe any  other  terms ;  and  a  notice  can  at  the  most  only  amount  to 
a  proposal  for  a  special  contract,  which  requires  the  assent  of  the 
other  party.  Putting  the  matter  in  the  most  favorable  light  for  the 
carrier,  the  mere  delivery  of  goods  after  seeing  a  notice  cannot  war- 
rant a  stronger  presumption  that  the  owner  intended  to  assent  to  a 
restricted  liability  on  the  part  of  the  carrier,  than  it  does  that  he  in- 
tended to  insist  on  the  liabilities  imposed  by  law;  and  a  special  con- 
tract cannot  be  implied  where  there  is  such  an  equipoise  of  prob- 
abilities.^ 

Making  a  notice  the  foundation  for  presuming  a  special  contract, 
is  subject  to  a  further  objection.  It  changes  the  burden  of  proof. 
Independent  of  the  notice,  it  would  be  sufficient  for  the  owner  to 
prove  the  delivery  and  loss  of  the  goods ;  and  it  would  then  lie  on  the 
carrier  to  discharge  himself  by  showing  a  special  contract  for  a  re- 
stricted liability.  But  giving  effect  to  the  notice  makes  it  necessary 
for  the  owner  to  go  beyond  the  delivery  and  loss  of  the  goods,  and 
prove  that  he  did  not  assent  to  the  proposal  for  a  limited  responsibility. 
Instead  of  leaving  the  onus  of  showing  assent  on  him  who  sets  up  that 
affirmative  fact,  it  is  thrown  upon  the  other  party,  and  he  is  required 
to  prove  a  negative,  that  he  did  not  assent. 

After  all  that  has  been  or  can  be  said  in  defence  of  these  notices, 
whether  regarded  either  as  a  ground  for  presuming  fraud  or  imply- 
ing a  special  agreement,  it  is  impossible  to  disguise  the  fact  that  they 
are  a  mere  contrivance  to  avoid  the  liability  which  the  law  has  at- 
tached to  the  employment  of  the  carrier.  If  the  law  is  too  rigid,  it 
should  be  modified  by  the  Legislature,  and  not  by  the  courts.  It  has 
been  admitted  over  and  over  again  by  the  most  eminent  English 
judges,  that  the  effect  given  to  these  notices  was  a  departure  from 
the  common  law;  and  they  have  often  regretted  their  inability  to 
get  back  again  to  that  firm  foundation. 

The  doctrine  that  a  carrier  may  limit  his  responsibility  by  a  notice 
was  wholly  unknown  to  the  common  law  at  the  time  of  our  Revolu- 

2  "We  agree  that,  if  the  notice  furnishes  a  defense,  it  must  be  either  on  the 
ground  of  fraud,  or  a  limitation  of  liability  by  contract,  which  limitation  it 
is  competent  for  a  carrier  to  make,  because,  being  entitled  by  common  law 
to  Insist  on  the  full  price  of  carriage  being  jiald  beforehand,  he  may,  if  such 
price  be  not  paid,  refuse  to  carry  upon  the  terms  imposed  by  the  common 
law.  and  insist  upon  his  own  :  and  if  the  proprietor  of  the  goods  still  chooses 
that  they  should  be  carried,  it  must  be  ou  those  terms."  Parke,  B.,  in  Wyld 
V.  Pickford,  S  Mees.  &  W.  443  (1S41). 


400  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part    4 

tion.  It  has  never  been  received  in  this,  nor,  so  far  as  I  have  ob- 
served, in  an}'  of  the  other  states.  The  point  has  been  raised,  but  not 
directly  decided.  Barney  v.  Prentiss,  4  Har.  &  J.  (Md.)  317,  7  Am. 
Dec.  670;  Dwight  v.  Brewster,  1  Pick.  (Mass.)  50.  Should  it  now 
be  received  among  us,  it  will  be  after  it  has  been  tried,  condemned, 
and  abandoned  in  that  country  to  which  we  have  been  accustomed  to 
look  for  light  on  questions  of  jurisprudence.  *  *  * 
Judgment  affirmed.^ 


OPPENHEIMER  v.  UNITED,  STATES  EXPRESS  CO. 

(Supreme  Court  of  Illinois,  1873.     09  111.  G2,  18  Am.  Rep.  596.) 

This  was  an  action  brought  by  the  appellants,  wholesale  jewelers  in 
the  city  of  Chicago,  to  recover  from  appellee  the  value  of  a  box  of 
merchandise  which  was  delivered  to  the  defendant  at  New  York  City 
for  transportation  to  the  plaintiiTs.  A  jury  having  been  waived  in 
the  court  below,  the  cause  was  submitted  to  the  court  for  trial,  and 
judgment  rendered  for  the  plaintiffs  for  $50,  from  which  judgment 
they  appealed. 

The  testimony  showed  that  the  box  contained  watches  and  jewelry 
worth  $3,800.  The  carrier  placed  it  with  express  matter  of  ordinary 
value,  and  without  his  fault  it  was  destroyed  by  a  fire.  Had  its  value 
been  known,  it  would  have  been  placed  among  the  valuable  articles, 
which  were  not  destroyed.* 

Shkldon,  J.  The  question  presented  by  this  record  is  as  to  the 
effect  of  the  clause  in  the  receipt  in  this  case  restricting  the  liability 
of  the  company  to  $50,  unless  the  value  of  the  package  was  stated. 
The  denial  in  the  testimony  that  the  consignors  had  knowledge  of  this 
condition  in  the  receipt  must  be  held  to  be  overcome  by  the  circum- 
stances of  the  case.  *  *  *  They  must  be  held  to  have  had  such 
knowledge. 

The  position  is  taken  by  appellants'  counsel  that  it  is  incumbent  up- 
on the  express  company  to  show,  not  only  that  the  consignors  had 
knowledge  of  the  contents  of  the  receipt,  but  also  that  they  assented  to 
the  same,  and  consented  to  be  bound  thereby. 

A  distinction  exists  between  tlie  eft'ect  of  those  notices  by  a  carrier 

3  For  sliipment  with  knowledge  of  a  usage  to  exonerate  a  carrier  from  his 
strict  liability  as  evidence  of  an  agreement  to  do  so,  see  The  Reeside.  2  Sumu. 
567,  Fed.  Cas.  No.  11,657  (1837);  Boon  v.  The  Belfast,  40  Ala.  IM.  88  Am. 
Dec.  761  (1866) ;    Pittsburgh,  etc.,  Co.  v.  Barrett,  36  Ohio  St.  448  (1881). 

In  Pickermg  v.  Weld,  159  Mass.  522,  34  N.  E.  1081  (1893),  Allen,  J.,  said: 
"A  usage  cannot  override  an  express  contract,  neither  can  a  usage  be  valid 
which  is  in  contravention  of  an  established  rule  of  law.  But  it  has  often 
been  held  to  be  within  the  legitimate  and  proper  scope  of  a  usage  of  trade  to 
regulate  the  time,  place,  and  manner  of  the  delivery  of  a  cargo,  where  there 
Is  no  express  contract  upon  the  subject ;  and  under  such  circumstances  the 
usage  is  deemed  to  enter  into  and  form  a  part  of  the  contract." 

4  The  statement  of  facts  has  been  rewritten  and  part  of  the  opinion  omitted. 


Ch.  4)  LIMITATION    OP   LIABILITY.  401 

which  seek  to  discharge  him  from  duties  which  the  law  has  annexed 
to  his  employment,  and  those,  like  the  one  in  question,  designed  sim- 
ply to  insure  good  faith  and  fair  dealing  on  the  part  of  his  employer — 
in  the  former  case,  notice  alone  not  being  effectual  without  an  assent 
to  the  attempted  restriction ;  while  in  the  latter  case,  notice  alone,  if 
brought  home  to  the  knowledge  of  the  owner  of  the  property  delivered 
for  carriage,  will  be  sufficient. 

The  rule  in  this  respect  is  thus  laid  down  by  the  Supreme  Court  of 
New  York:  "If  he  [the  carrier]  has  given  general  notice  that  he 
will  not  be  liable  over  a  certain  amount  unless  the  value  is  made  known 
to  him  at  the  time  of  delivery,  and  a  premium  for  insurance  paid,  such 
notice,  if  brought  home  to  the  knowledge  of  the  owner  (and  courts 
and  juries  are  liberal  in  inferring  such  knowledge  from  the  publication 
of  the  notice),  is  as  effectual  in  qualifying  the  acceptance  of  the  goods, 
as  a  special  agreement,  and  the  owner,  at  his  peril,  must  disclose  the 
value  and  pay  the  premium.  The  carrier,  in  such  case,  is  not  bound 
to  make  the  inquiry,  and  if  the  owner  omits  to  make  known  the  value, 
and  does  not  therefore  pay  the  premium  at  the  time  of  delivery,  it  is 
considered  as  dealing  unfairly  with  the  carrier,  and  he  is  liable  only 
to  the  amount  mentioned  in  his  notice,  or  not  at  all,  according  to  the 
terms  of  his  notice."  Orange  Co.  Bank  v.  Brown,  9  Wend.  115,  21 
Am.  Dec.  129.  See,  also,  2  Greenleaf.  Ev.  §  215;  Ang.  on  Carriers, 
§  245 ;  Farmers'  &  M.  Bank  v.  Champlain  Trans.  Co.,  23  Vt.  186,  56 
Am.  Dec.  68;  Moses  v.  Boston  &  3.1.  Railroad,  4  Fost.  (N.  H.)  85, 
55  Am.  Dec.  222. 

The  distinction  above  adverted  to  has  been  recognized  by  this  court. 
Western  Trans.  Co.  v.  Newhall  et  al.,  24  111.  466,  76  Am.  Dec.  736. 

The  common  carrier  is  liable,  as  we  find  it  frequently  laid  down,  in 
respect  to  his  reward,  and  the  compensation  should  be  in  proportion 
to  the  risk. 

As  the  carrier  incurs  a  heavy  responsibility,  he  has  a  right  to  de- 
mand from  the  employer  such  information  as  will  enable  him  to  decide 
on  the  proper  amount  of  compensation  for  his  services  and  risk,  and 
the  degree  of  care  which  he  ought  to  bestow  in  discharging  his  trust. 
Hollister  v.  Nowlen  [ante,  p.  395.]  And  such  a  limitation  of  the  car- 
rier's liability  as  the  one  in  question  is  held  to  be  reasonable  and  con- 
sistent with  public  policy. ° 

5  Ace.  .Tuclson  v.  Western  R.  Corp.,  6  Allen  (Mass.)  4S0,  49."^.  S3  Am.  Dec. 
CACj  Clf!m).  gemble;  McMillan  v.  Miehisan.  etc..  Co.,  16  :Mich.  79.  110,  9.3  Am. 
Dec.  208  (1867).  senible ;  Earnest  v.  Express  Co.,  1  Woods,  573.  Fed.  Cas.  No. 
4.248  (1873),  shipper  protested  that  notice  was  invalid.  Contra:  Southern 
Ex.  Co.  V.  Armstead,  .50  Ala.  3.")0  (1874),  serable.  In  Duntlev  v.  Boston  &  M. 
R.  Co..  66  N.  II.  263.  20  Atl.  327.  9  L.  R.  A.  449,  49  Am.  St.  Rep.  610  (1890),  and 
Klair  v.  Wilminston  Steamboat  Co.,  4  Pennewill  (Del.)  51.  ,'4  Atl.  694  (1902), 
shipment  with  knowledge  of  such  a  notice  was  treated  as  showing  assent  to 
its  terms. 

In  Railroad  Company  v.  Fraloff,  100  TT.  S.  24.  25  L.  Ed.  531  (1879).  Harlan, 
J.,  for  the  court  said:  "It  is  undoubtedly  competent  for  carriers  of  passengers, 
Green  Care.— 26 


402  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

But,  independent  of  the  qualifying  provision  contained  in  the  re- 
ceipt, we  should  be  inclined  to  sustain  the  defendant's  claim  of  ex- 
emption from  liability  on  the  ground  of  a  want  of  good  faith  in  not 
disclosing  the  value  of  the  goods. 

These  consignors  knew  that  there  was  a  recognized  distinction,  on 
the  part  of  the  company,  between  valuable  packages  and  ordinary 
freight;  that  they  had  their  separate  collectors  of  the  two  kinds,  and 
the  consignors  were  provided  with  signs  to  hang  out  to  denote  which 
one  of  the  collectors  they  had  goods  for.  They  must  have  displayed 
the  sign  indicating  that  they  had  ordinary  merchandise  to  be  carried, 
as  the  box  in  question  was  delivered  to  that  collector.  In  the  blank 
receipts  which  they  were  so  frequently  filling  out,  there  was  a  blank 
space  after  a  dollar  mark  for  filling  in  the  amount  the  goods  were 
valued  at;  this  was  a  virtual  request  on  the  part  of  the  company  to 
state  the  value.  There  was  an  actual  attempt  here  by  the  agent  of 
the  shippers  to  fill  in  this  blank  space;  but,  instead  of  inserting  3,800 
(the  value),  a  mark  or  character  was  inserted  inexpressive  of  any 
value.  This  shows  that  there  was  a  designed  suppression  of  the 
value  of  the  goods.  That  was  unfair  conduct  on  the  part  of  the  ship- 
pers of  the  goods.  The  effect  of  such  conduct  to  relieve  the  carrier 
from  his  liability  as  insurer,  is  asserted  in  the  cases  of  Chic.  &  A.  R. 
R.  Co.  V.  Thompson,  19  111.  578,  and  American  Express  Co.  v.  Per- 
kins, 42  111.  459.  Had  the  true  value  of  goods  been  disclosed,  there 
would  have  been  an  extra  charge  of  $9.50,  increased  precautions 
would  have  been  taken  for  the  safety  of  the  goods,  and,  as  the  evi- 
dence shows,  they  would  have  been  saved. 

The  court  below  was  justified  in  coming  to  the  conclusion  that  the 
consignors  elected  to  take  the  risk  of  the  loss,  rather  than  subject  the 
plaintiffs  to  the  enhanced  charges  that  would  have  been  made  had 
the  value  of  the  package  been  disclosed.     *     *     * 

It  is  said  the  practice  and  course  of  dealing  had  been  such  on  the 
part  of  the  company  as  to  amount  to  a  waiver  of  the  limitation,  and 
to  induce  the  consignors  to  believe  that  it  would  not  be  insisted  upon. 
We  do  not  find  in  the  evidence  sufficient  to  justify  the  assertion  that 
the  company's  course  of  dealing  had  been  such  as  to  lead  either  the 
appellants  or  their  consignors  to  infer  that  it  did  not  insist  upon  the 
conditions  embodied  in  the  printed  receipts. 

Because  the  company,  as  shown  by  the  evidence,  had   settled  for 

by  speciBc  regulations,  distinctly  brought  to  the  knowledge  of  the  i^assenger, 
which  are  reasonable  in  their  character  and  not  inconsistent  with  any  stat- 
ute or  their  duties  to  the  public,  to  protect  themselves  against  liability,  as 
insurers,  for  baggage  exceeding  a  fixed  amount  in  value,  except  upon  addi- 
tional compensation,  proportioned  to  the  risk." 

Ace.  Jacobs  V.  Central  R.  Co.,  208  Pa.  535,  57  Atl.  982  (1904).  A  railroad 
which  contracts  for  through  transportation  may  by  a  provision  in  the  bill  of 
lading  exempt  itself  from  liability  for  loss  beyond  its  own  line,  although  the 
provision  is  unenforceable  as  a  contract  because  the  railroad  gave  the  ship- 
per no  option  of  other  terms.  Ft.  Worth,  etc.,  Co.  v.  Wright,  24  Tex.  Civ. 
App.  291,  58  S.  W.  846  (1900). 


Ch.  4)  LIMITATION    OF   LIABILITY.  403 

losses  of  bulky  goods  without  raising  the  point  whether,  by  the  terms 
of  the  contract,  it  was  discharged  from  liabiHty,  and,  in  one  instance, 
paid  the  appellants  for  a  loss  exceeding  $50  where  there  was  no  valua- 
tion, the  company  was  not  thereby  precluded  from  questioning  its  lia- 
bility in  any  case  that  might  arise  thereafter,  and  the  appellants  had 
no  right  to  expect  that  it  would  not  do  so.  The  written  contract 
speaks  for  itself  what  it  is,  and  is  not  to  be  thus  contradicted  or  modi- 
fied by  parol  evidence.     Evans  v.  Soule,  2  Maule  &  Sel.  2. 

The  judgment  of  the  court  below  will  be  affirmed.     Judgment  af- 
firmed.® 


BURNS  V.  BOSTON  ELEVATED  RY.   CO. 

(Supreme  Judicial  Court  of  Massacliusetts,  1903.    183  Mass.  90,  GO  N.  E.  418.<) 

Morton,  J.  This  is  an  action  of  tort  for  personal  injuries.  The 
plaintiff  was  riding  on  the  front  platform  of  a  car  belonging  to  the 
defendant,  and  as  it  rounded  a  sharp  curve  at  the  corner  of  Lowell 
and  Brighton  streets,  in  Boston,  was  thrown  off  by  a  sharp  jerk,  and 
received  the  injuries  complained  of.  There  was  testimony  tending 
to  show  that  the  speed  was  unusual  and  excessive,  that  the  car  was 
crowded,  and  that  there  were  six  or  seven  others  on  the  platform. 
The  plaintifif  testified  on  cross-examination  that  he  knew  that  there 
was  a  sign  on  the  car  that  "Passengers  riding  on  the  front  platform 
do  so  at  their  own  risk,"  and  finally  said  (though  he  denied  it  at  first) 
that  he  knew  that,  according  to  the  sign,  when  he  rode  on  the  front 
platform,  if  he  had  an  accident  such  as  happened,  he  took  the  risk. 
At  the  close  of  the  plaintifi;'s  evidence  the  judge  directed  a  verdict 
for  the  defendant,  and  the  case  is  here  on  exceptions  by  the  plaintiff 
to  that  ruling. 

We  think  that  the  ruling  was  right.  The  rule  in  respect  to  pas- 
sengers riding  on  the  front  platform  must  be  regarded,  it  seems  to  us, 
as  a  reasonable  rule,  and  such  a  rule  as  the  defendant  had  a  right  to 
adopt.  Sweetland  v.  Lynn  &  Boston  R.  R.,  177  Mass.  574,  579.  59 
N.  E.  443,  51  L.  R.  A.  783,  and  cases  cited.  It  would  have  had  the 
right  to  prohibit  absolutely  passengers  from  riding  on  the  front  plat- 
form, and  a  passenger  who,  without  sufficient  excuse,  knowingly  vio- 
lated the  rule,  and  was  injured  in  consequence  thereof,  would  have 
been  guilty  of  contributory  negligence,  and  would  not  have  been  en- 
titled to  recover,  even  though  the  defendant  had  also  been  negligent 
Wills  V.  Lynn  &  Boston  R.  R.,  129  Mass.  351. 

We  do  not  think  that  the  only  alternatives  open  to  the  defendant 
were  those  of  absolute  prohibition  or  unqualified  permission.  The  no- 
tice contained  a  fair  warning  that  the  front  platform  was  regarded 

6  Compare  Shaw  v.  Gt.  Western  Ry.  Co..  1  Q.  B.  373,  380  (1894).  See  Ever- 
ett V.  So.  Exp.  Co.,  ante,  p.  97,  and  cases  in  note. 


404  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER;  (Part   4: 

by  the  company  as  a  place  of  exposure  to  danger,  and  that  it  was 
unwilHng  that  passengers  should  ride  there,  unless  they  were  content 
to  take  the  risks  of  doing  so ;  and  it  is  not  unreasonable,  it  seems  to 
us,  to  say  that  a  passenger  who  knew  the  rule,  as  the  plaintiff  did,  and 
rode  upon  the  front  platform,  accepted  the  risk,  in  the  absence  of 
anything  to  show  that  the  rule  had  been  waived  by  the  company,  or 
that  it  was  not  in  force. 

The  rule  is  to  be  regarded,  we  think,  as  designed  to  promote  the 
safety  of  passengers,  by  warning  them  that  the  front  platform  was 
or  might  be  a  place  of  danger,  and  that  they  rode  there  at  their  own 
risk,  rather  than  as  designed  to  protect  the  defendant  from  the  re- 
sults of  its  own  negligence,  or  that  of  its  servants  or  agents.  And 
we  think  that,  upon  the  undisputed  testimony,  the  plaintifif  must  be 
held  to  have  accepted  the  risk. 

The  fact  that  the  car  was  crowded  is  immaterial.  The  plaintifif  was 
not  obliged  to  get  onto  a  crowded  car,  and  it  was  not  negligence  on 
the  part  of  the  defendant  to  take  him  as  a  passenger,  because  the 
car  was  crowded.  Jacobs  v.  West  End  St.  Ry.,  178  Mass.  116,  59 
N.  E.  039.  The  fact  that  there  were  other  passengers  on  the  plat- 
form did  not  show  that  the  rule  had  been  waived  by  the  defendant 
or  was  not  in  force.  Their  presence  there  was  as  consistent  with  the 
fact  that  the  rule  was  still  in  force  as  that  it  was  not.  The  case  is 
very  different  from  that  of  Sweetland  v.  Lynn  &  Boston  R.  R.,  su- 
pra, on  which  the  plaintifif  relies.  There  was  abundant  evidence  in 
that  case  of  a  custom  to  use  the  front  platform,  and  that  the  rule 
notifying  passengers  not  to  stand  on  the  front  platform  was  not  in 
force. 

Exceptions  overruled. 


BOERING  V.  CHESAPEAKE  BEACH  RY.  CO. 

(Supreme  Court  of  the  United  States,  1904.     193  U.  S.  442,  24  Sup.  Ct.  515, 

48  L.  Ed.  742.) 

Brewer,  J.  This  was  an  action  brought  in  the  Supreme  Court  of 
the  District  of  Columbia  to  recover  damages  for  personal  injuries 
sustained  by  Mrs.  Boering  while  riding  in  one  of  the  coaches  of  the 
defendant,  and  caused,  as  alleged,  by  the  negligence  of  the  company. 
Her  husband  was  joined  with  her  as  plaintifif,  but  no  personal  injury 
to  him  was  alleged.  The  defense  was  that  she  was  riding  upon  a  free 
pass,  which  contained  the  following  stipulation:  "The  person  ac- 
cepting and  using  this  pass  thereby  assumes  all  risk  of  accident  and 
damage  to  person  and  property,  whether  caused  by  negligence  of  the 
company's  agents  or  otherwise."  A  trial  before  the  court  and  a  jury 
resulted  in  a  verdict  and  judgment  for  the  defendant,  which  was  af- 
firmed by  the  Court  of  Appeals  of  the  District  (20  D.  C.  App.  500), 
and  thereupon  the  case  was  brought  here  on  error. 


Ch.  4)  LIMITATION    OF   LIABILITY.  405 

The  contention  of  the  plaintiffs  is  that  the  company  was  Hable  in 
any  event  for  injuries  caused  by  its  neghgence  to  one  riding  on  its 
trains ;  and  further,  that  if  it  were  not  Hable  for  such  negligence  to 
one  accepting  a  free  pass  containing  the  stipulation  quoted,  it  was 
liable  to  Mrs.  Boering,  because  it  did  not  appear  that  she  knew  or  as- 
sented to  the  stipulation.  The  trial  court  submitted  to  the  jury  the 
question  whether  she  was,  in  fact,  a  free  passenger,  and  as  the  ver- 
dict was  in  favor  of  the  defendant,  that  question  of  fact  was  settled 
in  favor  of  the  company.  Under  those  circumstances  the  recent  de- 
cision of  this  court  in  Northern  P.  R.  Co.  v.  Adams  [post,  p.  451]  dis- 
poses of  the  first  contention. 

With  reference  to  the  second  contention,  the  testimony  of  the  two 
plaintiffs  showed  that  the  husband  had  attended  to  securing  transpor- 
tation ;  that  he  obtained  passes  for  himself  and  wife,  and  that  they 
had  traveled  on  these  passes  before ;  that  she  knew  the  difference  be- 
tween passes  (she  called  them  "cards")  and  tickets,  for  on  that  day 
her  husband  had  purchased  a  ticket  for  a  friend  who  was  traveling 
with  them,  and  she  had  seen  him  use  both  ticket  and  passes.  They 
further  testified  that  she  had  not  had  either  pass  in  her  possession, 
and  that  her  attention  had  not  been  called  to  the  stipulation.  Now, 
it  is  insisted  that  the  exemption  from  liability  for  negligence  results 
only  from  a  contract  therefor;  that  there  can  be  no  contract  without 
knowledge  of  the  terms  thereof  and  assent  thereto,  and  that  she  had 
neither  knowledge  of  the  stipulation  nor  assented  to  its  terms ;  that 
therefore  there  was  no  contract  between  her  and  the  company  ex- 
empting it  from  liability  for  negligence. 

Counsel  refer  to  several  cases  in  which  it  has  been  held  that  stip- 
ulations in  contracts  for  carriage  of  persons  or  things  are  not  bind- 
ing unless  notice  of  those  stipulations  is  brought  home  to  such  pas- 
senger or  shipper.  We  do  not  propose  in  any  manner  to  qualify  or 
limit  the  decisions  of  this  court  in  respect  to  those  matters.  They 
are  not  pertinent  to  this  case.  They  apply  when  a  contract  for  car- 
riage and  shipment  is  shown.  When  that  appears  it  is  fitting  that 
any  claim  of  limitation  of  the  ordinary  liabilities  arising  from  such 
a  contract  should  not  be  recognized  unless  both  parties  to  the  con- 
tract assent,  and  that  assent  is  not  to  be  presumed,  but  must  be  proved. 
Here  there  was  no  contract  of  carriage,  and  that  fact  was  known  to 
Mrs.  Boering.  She  was  simply  given  permission  to  ride  in  the  coaches 
of  the  defendant. 

Accepting  this  privilege,  she  was  bound  to  know  the  conditions 
thereof.  She  may  not.  through  the  intermediary  of  an  agent,  obtain 
a  privilege — a  mere  license — and  then  plead  that  she  did  not  know 
upon  what  conditions  it  was  granted.  A  carrier  is  not  bound,  any 
more  than  any  other  owner  of  property,  who  grants  a  privilege,  to 
hunt  the  party  to  whom  the  privilege  is  given,  and  see  that  all  the 
conditions  attached  to  it  are  made  known.  The  duty  rests  rather  up- 
on the  one  receiving  the  privilege  to  ascertain  those  conditions.     In 


40G  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

Quimby  v.  Boston  &  M.  R.  Co.,  150  Mass.  365,  367,  23  N.  E.  205, 
5  L.  R.  A.  846,  847,  a  case  of  one  traveling'  on  a  free  pass,  and  in 
which  the  question  of  the  assent  of  the  holder  of  the  pass  was  pre- 
sented, the  court  said : 

"Having  accepted  the  pass,  he  must  have  done  so  on  the  conditions 
fully  expressed  therein,  whether  he  actually  read  them  or  not.  Squire 
V.  New  York  C.  R.  Co.,  98  Mass.  239,  93  Am.  Dec.  162;  Hill  v.  Bos- 
ton, H.  T.  &  W.  R.  Co.,  144  Mass.  284,  10  N.  E.  836 ;  Boston  &  M. 
R.  Co.  V.  Chipman,  146  Mass.  107,  14  N.  E.  940  [4  Am.  St.  Rep. 
293]." 

So  in  Muldoon  v.  Seattle  City  R.  Co.,  10  Wash.  311,  313,  38  Pac. 
995,  996,  45  Am.  St.  Rep.  787:  "We  think  it  may  be  fairly  held  that 
a  person  receiving  a  ticket  for  free  transportation  is  bound  to  see 
and  know  all  of  the  conditions  printed  thereon  which  the  carrier  sees 
fit  to  lawfully  impose.  This  is  an  entirely  different  case  from  that 
where  a  carrier  attempts  to  impose  conditions  upon  a  passenger  for 
hire,  which  must,  if  unusual,  be  brought  to  his  notice.  In  these  cases 
of  free  passage,  the  carrier  has  a  right  to  impose  any  conditions  it 
sees  fit  as  to  time,  trains,  baggage,  connections,  and,  as  we  have  held, 
damages  for  negligence ;  and  the  recipient  of  such  favors  ought,  at 
least,  to  take  the  trouble  to  look  on  both  sides  of  the  paper  before 
he  attempts  to  use  them."  See,  also,  Griswold  v.  New  York  &  N.  E. 
R.  Co.,  53  Conn.  371,  4  Atl.  261,  55  Am.  Rep.  115;  Illinois  C.  R.  Co. 
V.  Read,  37  111.  484,  510,  87  Am.  Dec.  260. 

As  was  well  observed  by  Circuit  Judge  Putnam  in  Duncan  v.  Maine 
C.  R.  Co.  (C.  C.)  113  Fed.  508,  514,  in  words  quoted  with  approval 
by  the  Covirt  of  Appeals  in  this  case:  "The  result  we  have  reached 
conforms  the  law  applicable  to  the  present  issue  to  that  moral  sense 
which  justly  holds  those  who  accept  gratuities  and  acts  of  hospitality 
to  perform  the  conditions  on  which  they  are  granted." 

We  see  no  error  in  the  record,  and  the  judgment  of  the  Court  of 
Appeals  is  affirmed.'^ 

7  Ace.  Rogers  v.  Kennebec  Steamboat  Co.,  SO  Me.  201,  29  Atl.  lOGD,  2.j  L.  R. 
A.  491  (1894).  Contra,  see  Carriers,  9  Cent.  Dig.  §  12.j3,  4  Dec.  Dig.  §  307  (2). 
Blair  v.  Erie  Railway  Co.,  66  N.  Y.  313,  23  Am.  Rep.  55  (1876),  was  an  action 
by  an  administratrix  for  the  death  of  her  intestate,  an  express  messenger, 
killed  in  a  negligent  railroad  wreck.  The  defense  rested  upon  a  clause  in 
the  railroad's  contract  with  the  expi-ess  company,  which,  as  the  railroad  con- 
tended, provided  that  in  transporting  the  messengers  of  the  express  company 
it  assumed  no  liability  even  for  negligent  injury.  A  majority  of  the  court 
thought  that  the  clause  did  not  apply  to  negligent  injury,  and  therefore  af- 
firmed a  judgment  for  the  plaintiff.  Earl,  J.,  believing  that  the  clause  was 
intended  to  cover  negligent  injury,  dissented.  He  said,  in  part:  "But  it  is 
claimed  that  the  messenger  was  not  bound  by  this  agreement,  in  the  absence 
of  proof  that  he  knew  of  it  and  thus  can  be  held  to  have  assented  to  it.  He 
was  not  a  passenger  upon  the  train.  He  was  upon  the  train  in  an  express 
ear,  engaged  in  the  separate  business  of  the  express  company.  He  was  in 
that  car  lawfully  only  as  he  was  there  under  the  agreement.  He  knew  that 
he  had  not  paid  any  fare,  and  that  he  had  made  no  contract  for  his  carriage. 
He  must  have  known  that  he  was  there  under  some  arrangement  between 
the  express  company  and  the  defendant,  and  that  whatever  right  he  had  to 


Ch.  4)  LIMITATION    OF   LIABILITY.  407 

SECTION   2.— LIMITATION   OF  LIABILITY   BY   CONSENT 


DORR  V.  NEW  JERSEY  STEAM  NAVIGATION  CO. 

(Court  of  Appeals  of  New  York,  1854.     11  N.  Y.  4S.j,  G2  Am.  Dec.  125.) 

This  was  an  action  against  the  defendant,  as  a  common  carrier  of 
goods  upon  the  Long  Island  Sound,  between  New  York  and  Stoning- 
ton,  for  the  loss  and  destruction  of  certain  goods,  intrusted  to  its  care. 

The  declaration  was  in  case,  in  the  usual  form  prior  to  the  enact- 
ment of  the  Code.  The  defendant  pleaded  the  general  issue;  and 
also  that  the  goods  were  received  on  board  the  steamboat  Lexington, 
under  a  special  agreement  for  the  transportation  thereof,  in  the  fol- 
lowing terms : 

"New  Jersey  Steam  Navigation  Company,  received  of  S.  &  E.  Dorr 
&  Co.,  on  board  the  steamer  Lexington,  Child,  master,  two  cases  for 
E.  Baker  &  Co.,  Boston,  marked  and  numbered  as  in  the  margin,  to 
be  transported  to  Stonington,  and  there  be  delivered  to  railroad  agent 
or  assigns;  danger  of  fire,  water,  breakage,  leakage  and  all  other  ac- 
cidents excepted,  and  no  package  whatever,  if  lost,  injured  or  stolen, 
to  be  deemed  of  greater  value  than  two  hundred  dollars. 

"Freight,   as   customary   with    steamers   on   this   line. 

"N.  B. — The  company  are  to  be  heid  responsible  for  ordinary  care 
and  diligence  only  in  the  transportation  of  merchandise  and  other 
property  shipped  or  put  on  board  the  boat  of  this  line. 

"Dated  at  New  York,  January  13th,  1840. 

"Contents  unknown.  George  Child,  Master." 

That  while  the  merchandise  was  well  and  properly  stowed  on  board 
the  steamboat,  and  being  carried  pursuant  to  the  contract,  and  with- 
out any  carelessness  or  misconduct  of  the  defendant,  or  its  servants, 
or  any  defect  in  the  boat,  or  its  equipments,  the  boat,  by  mere  cas- 
ualty and  accident,  took  fire  and  was  consumed,  with  its  cargo,  in- 
cluding the  merchandise  of  the  plaintiffs ;  and  thereby,  by  accident 
and  casualty  of  fire,  and  not  by  any  negligence,  misconduct,  or  de- 
be  transported  was  as  the  servant  of  the  express  company.  He  was  there 
not  in  his  own  right,  l)ut  in  the  riglit  of  the  express  company,  and  hence  he 
was  bound  by  the  arran.iieuient  tliat  company  made  for  him."  Ace.  Pitts- 
burgh, etc.  Ry.  Co.  v.  Mahoney,  148  Ind.  19G,  40  N.  E.  917,  40  L.  R.  A.  101, 
02  Am.  St.  Rep.  503  (1897) ;  Illinois  Cent.  R.  Co.  v.  Read,  37  111.  484,  510,  87 
Am.  Dec.  200  (1805).  Contra:  Brewer  v.  N.  Y.,  L.  E.  &  \V.  Ry.  Co.,  124  N. 
Y.  .".9,  20  N.  E.  324,  11  L.  R.  A.  483.  21  Am.  St.  Rep.  047  (1891). 

If  a  passenger,  permitted  to  ride  free  on  condition  that  the  carrier  shall 
be  under  no  obligation  to  care  for  his  safety,  is  a  minor,  the  condition  is  void 
of  effect.  Flower  v.  London  &  N.  W.  Ry.  Co.,  2  Q.  B.  05  (1894)  ;  Chicago.  R. 
I.  &  P.  Ry.  Co.  V.  Lee,  92  Fed.  318.  34  C.  C.  A.  305  (1899).  Contra:  Griswold 
V.  N.  Y.  &  N.  E.  R.  Co.,  53  Conn.  371,  4  Atl.  201,  55  Am.  Rep.  115  (1885). 


408  EXCEPTIOXAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

fault  of  the  defendant,  the  merchandise  was  not  delivered  at  Stoning- 
ton,  and  became  lost  to  the  plaintiffs. 

The  plaintiffs  demurred  to  this  plea;  and  the  Superior  Court  gave 
judgment  against  the  defendant  thereon.  The  issues  of  fact  were 
afterwards  tried,  before  a  jury,  and  a  verdict  rendered  in  favor  of  the 
plaintiffs  for  $3,247.90.  The  Supreme  Court,  in  the  First  District, 
having  subsequently  denied  a  motion  for  a  new  trial,  on  a  bill  of  ex- 
ceptions, and  perfected  judgment  in  favor  of  the  plaintiffs,  the  de- 
fendant took  this  appeal. 

Parker,  J.  The  courts  of  this  state  have  steadily  adhered  to  the 
common-law  rule  that  a  common  carrier  cannot  screen  himself  from 
liability  by  notice,  whether  brought  home  to  the  owner  or  not.  Since 
the  very  full  and  learned  discussion  of  that  question  in  Hollister  v. 
Nowlen  [ante,  p.  395]  and  Cole  v.  Goodwin,  19  Wend.  251.  32  Am. 
Dec.  470,  it  has  been  regarded  as  settled  upon  mature  deliberation, 
and  the  conclusion  arrived  at  in  those  cases  has  been  uniformly  ac- 
quiesced in  and  followed.  Camden  Co.  v.  Belknap,  21  Wend.  354; 
Clark  V.  Faxton,  Id.  153  ;  Alexander  v.  Greene,  3  Hill,  9  ;  7  Hill,  533 ; 
Powell  V.  Myers,  2G  Wend.  594.  These  decisions  rest  on  the  very 
satisfactory  reasons  that  the  notice  was  no  evidence  of  assent  on  the 
part  of  the  owner,  and  that  he  had  a  right  to  repose  upon  the  com- 
mon-law liability  of  the  carrier,  who  could  not  relieve  himself  from 
such  liability,  by  any  mere  act  of  his  own. 

But  the  question  here  presented  is  of  a  very  dift'erent  character. 
It  is' whether  it  is  competent  for  the  carrier  and  the  owner,  by  an 
agreement  between  themselves,  to  establish  conditions  of  liability  dif- 
ferent from  those  cast  by  law  upon  a  common  carrier.  I  think  this 
question  is  distinctly  presented  by  the  demurrer  to  the  second  plea, 
and,  it  seems  to  me,  also  to  be  involved  in  the  decisions  made  at  the 
trial  of  the  issue  of  fact;  for  the  exceptions  to  the  common-law  lia- 
bility, being  made  in  the  bill  of  lading  and  delivered  to  the  agent  of 
the  plaintiffs,  must  be  deemed  to  have  been  agreed  upon  by  the  par- 
ties. *  *  *  jf  gyj.]-,  jg  j^Qt  ^|-ig  legal  inference,  then  it  was  a  ques- 
tion of  fact  for  the  jury  to  decide  what  was  the  agreement  between 
the  parties,  and  in  that  case  the  same  question  of  law  would  still  be 
presented  for  decision. 

The  plaintiffs  rely  upon  the  case  of  Gould  v.  Plill,  2  Hill,  623.  It 
was  there  broadly  decided  by  a  majority  of  the  late  Supreme  Court, 
Nelson,  C.  J.,  dissenting,  that  common  carriers  could  not  limit  their 
liability,  or  evade  the  consequences  of  a  breach  of  their  legal  duties, 
as  such,  by  an  express  agreement  or  special  acceptance  of  the  goods 
to  be  transported.  That  decision  rested  upon  no  earlier  adjudication 
in  this  state,  though  the  question  had  been  previously  discussed  and 
obiter  opinions  upon  it  sometimes  expressed  by  judges,  in  deciding  the 
question  whether  a  carrier  could  lessen  the  extent  of  his  liability,  by 
notice.  But  the  case  of  Gould  v.  Hill  has  been  deliberately  overruled 
by  the  present  Supreme  Court,  in  two  carefully  considered  cases,  viz., 


Cll.  4)  LIMITATION    OF   LIABILITY.  40{> 

Parsons  v.  Alonteath,  13  Barb.  353,  and  Aloore  v.  Evans,  14  Barb. 
524.  In  both  those  cases  the  question  is  examined  with  much  abiHty, 
and,  I  think,  the  unsoundness  of  the  conchision  in  Gould  v.  Hill  most 
satisfactorily  shown.  I  am  not  aware  that  Gould  v.  Hill  has  been 
followed  in  any  reported  case.  In  Wells  v.  Steam  Navigation  Com- 
pany, 2  N.  Y.  209,  Bronson,  J.,  who  seems  to  have  concurred  with 
Judge  Cowen  in  deciding  Gould  v.  Hill,  speaks  of  the  question  as 
being  still,  perhaps,  a  debatable  one. 

That  a  carrier  may,  by  express  contract,  restrict  his  common-law 
liability,  is  now,  I  think,  a  well-established  rule  of  law.  It  is  so  un- 
derstood in  England  (Kenrig  v.  Eggleston,  Aleyn,  93 ;  Alorse  v.  Slue 
[ante,  p.  313]  ;  Catley  v.  Wintringham,  Peake's  N.  P.  Gas.  150;  Gib- 
bon V.  Paynton  [post,  p.  457]  ;  Leeson  v.  Holt,  1  Starkie,  186;  Har- 
ris V.  PacJ<wood,  3  Taunt.  2G4;  Wyld  v.  Pickford  [ante,  p.  399, 
note  2]  ;  Southcote's  Case,  4  Co.  84),  and  in  Pennsylvania  (Camden  & 
A.  R.  Co.  v.  Baldauf,  16  Pa.  67,  55  Am.  Dec.  481 ;  Beckman  v.  Shouse, 
5  Rawle,  179,  28  Am.  Dec.  653;  Bingham  v.  Rogers,  6  Watts  &  S. 
495,  40  Am.  Dec.  581).  In  other  states,  where  the  question  has  arisen 
whether  notice  would  exclude  the  liability  of  the  carrier,  it  seems  to 
have  been  taken  for  granted  that  a  special  acceptance  would  do  so; 
and  in  New  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  6  How.  382, 
12  L.  Ed.  465,  it  was  so  held  by  the  Supreme  Court  of  the  United  States. 
For  the  concurrent  opinions  of  elementary  writers  in  favor  of  this  doc- 
trine, see  Story  on  Bailm.  §  549 ;  Chitty  on  Cont.  152 ;  2  Kent,  Com. 
606;  Angell  on  Carriers,  §§  59,  220,  221. 

Upon  principle,  it  seems  to  me,  no  good  reason  can  be  assigned  why 
the  parties  may  not  make  such  a  contract  as  they  please.  It  is  not  a 
matter  affecting  the  public  interests ;  no  one  but  the  parties  can  be  the 
losers,  and  it  is  only  deciding  by  agreement  which  shall  take  the  risk 
of  the  loss.  The  law,  where  there  is  no  special  acceptance,  imposes 
the  risk  upon  the  carrier ;  if  the  owner  chooses  to  relieve  him,  and 
assume  the  risk  himself,  who  else  has  a  right  to  complain?  It  is  sup- 
posed that  the  extent  of  the  risk  will  be  measured  by  the  amount  of 
compensation,  and  the  latter,  it  will  not  be  denied,  may  be  regulated 
by  agreement.  The  right  to  agree  upon  the  compensation  cannot", 
without  great  inconsistency,  be  separated  from  the  right  to  define  and 
limit  the  risk.  Parties  to  such  contracts  are  abundantly  competent 
to  contract  for  themselves ;  they  are  among  the  most  shrewd  and  in- 
telligent business  men  in  the  community,  and  have  no  need  of  a  spe- 
cial guardianship  for  their  protection.  It  is  enough  that  the  law 
declares  the  liability,  where  the  parties  have  said  nothing  on  the  sub- 
ject; but,  if  the  parties  will  be  better  satisfied  to  deal  on  different 
terms,  they  ought  not  to  be  prevented  from  doing  so. 

It  is  true,  a  common  carrier  exercises  a  quasi  public  employment^ 
and  has  public  duties  to  perform ;  that  he  cannot  reject  a  customer, 
at  pleasure,  or  charge  any  price  that  he  chooses  to  demand ;  that  if  he 
refuses  to  carry  goods  according  to  the  course  of  his  employment,. 


410  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

without  a  sufficient  excuse,  he  will  be  liable  to  an  action,  and  that  he 
can  only  demand  a  reasonable  compensation  for  his  risk  and  service 
(Bac.  Abr.  Carriers,  B;  3  Kent,  599;  Story  on  Bailm.  328;  Coggs  v. 
Bernard  [ante,  p.  317]  ;  Boidston  v.  Sandiford,  Skin.  279  ;  Gisbourn  v. 
Hurst,  1  Salk.  249;  Jackson  v.  Rogers  [ante,  p.  16]  ;  Pickford  v.  Grand 
Junction  Ry.  Co.,  8  Mees.  &  W.  372 ;  Dwight  v.  Brewster  [ante,  p. 
34]  ;  Hale  v.  New  Jersey  Steam  Nav.  Co.,  15  Conn.  539,  39  Am.  Dec. 
398  [ante,  p.  17]) ;  and  that  an  action  will  lie  against  him  upon  a  tort, 
arising  ex  delicto,  for  a  breach  of  duty  (Orange  County  Bank  v. 
Brown  [ante,  p.  321]).  In  such  case,  there  being  no  special  contract, 
the  parties  are  supposed  to  have  acted  with  a  full  knowledge  of  their 
legal  rights  and  liabilities,  and  there  may  be,  perhaps,  good  reason  for 
the  stringent  rule  of  law,  which  makes  the  carrier  an  insurer  against 
all  except  the  act  of  God  and  the  public  enemy. 

But  when  a  special  contract  is  made,  their  relations  are  changed, 
and  the  carrier  becomes,  as  to  that  transaction,  an  ordinary  bailee  and 
private  carrier  for  hire.  This  neither  changes  nor  interferes  with  any 
established  rule  of  law ;  it  only  makes  a  case  to  be  governed  by  a  dif- 
ferent rule.  To  say  the  parties  have  not  a  right  to  make  their  own 
contract,  and  to  limit  the  precise  extent  of  their  own  respective  risks 
and  liabilities,  in  a  matter  in  no  way  affecting  the  public  morals,  or 
conflicting  with  the  public  interests,  would,  in  my  judgment,  be  an  un- 
warrantable restriction  upon  trade  and  commerce,  and  a  most  pal- 
pable invasion  of  personal  right. 

The  judgment  of  the  Supreme  Court  should  be  reversed,  and  judg- 
ment be  given  for  the  defendant  on  the  demurrer,  with  leave  to  the 
plaintiffs  to  reply,  on  terms,  and  a  n*ew  trial  should  be  awarded  on 
the  issue  of  fact. 

Judgment  accordingly.^ 

9  In  jNIichigan  Central  Railroad  Co.  v.  Hale,  6  Mich.  243,  260  (1859),  Martin, 
C.  J.,  said:  "The  principle  usually  suggested  as  that  upon  which  [rests]  the 
right  of  the  carrier  to  make  a  contract  by  which  his  liability  will  be  limited 
or  restricted  is  that  stated  by  Bronson.  J.,  \n  Hollister  v.  Nowlen,  10  Wend. 
(N.  Y.)  247,  32  Am.  Dec.  45.5.  viz.:  That  'the  person  intrusted  with  the  goods, 
although  he  usually  exercises  that  employment,  does  not,  in  the  particular 
case,  act  as  a  common  carrier.'  The  same  idea  is  also  thrown  out  by  Mr.  Jus- 
tice Nelson,  in  New  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  16  How.  344, 
12  L.  Ed.  465,  where  he  says:  'The  owner,  by  entering  into  the  contract,  vir- 
tually agrees  that,  in  respect  to  the  particular  transaction,  the  carrier  is  not 
to  be  regarded  as  in  the  exercise  of  his  public  employment,  but  as  a  private 
person,  who  incurs  no  responsibility  beyond  that  of  an  ordinary  bailee  for 
hire,  and  answerable  only  for  misconduct  or  neglect.'  Whether  this  be  the 
correct  principle  upon  which  to  base  this  right,  or  not,  it  is  very  certain  that 
all  the  cases  from  the  time  of  Lord  Coke  down,  recognize  this  right  of  the 
carrier  to  contract  respecting  his  employment,  and  thereby  to  diminish  his 
liability.  But  this  right  is  recognized  as  a  power  to  contract,  not  to  restrict. 
For  my  own  part,  I  cannot  appreciate  the  correctness  of  the  reason,  or  ac- 
cede to  the  principle,  upon  which  this  right  is  based.  It  has  sprung,  I  think, 
from  the  undue  prominence  given  to  the  idea  that  the  carrier  was,  by  the  con- 
tract, restricting  his  liability,  and  in  forgetfulness  of  the  fact  that  such  con- 
tract is  the  mutual  act  of  parties  in  relation  to  a  matter  of  private  business. 
Now,  it  is  true  that  the  occupation  of  a  carrier  is  a  public  employment,  in  a 


Ch.  4)  LIMITATION    OF   LIABILITY.  411 

Mc^IILLAN  V.  MICHIGAN  SOUTHERN  &  N.  I.  R.  CO. 

(Supreme  Court  of  Michigan,  18G7.     16  Mich.  79,  93  Am.   Dec.  208.) 

Action  on  the  case  against  a  railroad  company  as  a  common  carrier 
for  the  loss  by  fire  in  its  station  at  Detroit  of  certain  goods  belonging 
to  the  plaintiff,  including  two  barrels  of  eggs  which  had  been  de- 
livered to  the  defendant  at  Adrian  to  be  carried  to  Detroit.  Defend- 
ant gave  a  bill  of  lading  for  the  eggs  which  contained  a  clause  ex- 
empting it  from  liability  for  loss  by  fire.  Defendant  pleaded  the  gen- 
eral issue.  The  case  was  tried  without  a  jury  on  stipulations  which 
admitted  the  facts  stated  above,  and  other  facts  which  tended  to  show 
that  defendant  was  not  to  blame  for  the  fire.  The  trial  court  gave 
judgment  for  the  defendant.  The  case  was  afterwards  taken  to  the 
Supreme  Court,  where  Judge  Cooley  delivered  an  opinion  in  which 
he  discussed  fully  the  questions  of  law  involved.  He  came  to  the 
conclusion  that,  as  a  reasonable  time  had  not  elapsed  for  the  consignee 
to  remove  his  goods  after  being  notified  of  their  arrival,  the  railroad 
was  not  relieved  from  liability  by  the  fact  that  the  transportation  was 
over  and  the  goods  placed  in  a  freight  house.  On  this  question  the 
court  was  evenly  divided.  He  further  decided  that  a  Michigan  statute 
which  forbade  the  railroad  to  abridge  its  common-law  liability  did  not 
prevent  a  shipper's  releasing  it  from  liability  by  contract.  The  opinion 
continued  as  follows,  the  other  judges  concurring  in  this  part  of  it: 


certain  sense ;  that  is,  that  he  undertalves  to  carry  for  all  persons  indiffer- 
ently for  hire.  But,  in  my  view,  this  undertaking  fixes  his  character,  irre- 
spective of  rates  and  risks,  and  he  only  abandons  it  l)y  refusing  to  carry. 
The  duties  and  liabilities  which  the  law  imposes  upon  him  are  only  imposed 
because  the  public  character  has  been  already  assumed  by  him.  They  do  not 
go  to  create  it.  ^Yheu  that  character  has  been  assumed,  and  so  long  as  it 
continues,  it  is  the  right  of  every  person  to  require  of  the  carrier  the  trans- 
portation of  his  property  along  his  route,  upon  the  pa.vment  of  freight.  This 
cannot  be  refused,  although  it  may  be  regulated.  In  the  absence  of  any  con- 
tract, the  law  imposes  upon  the  carrier  the  extraordinary  liability  of  insurer 
against  all  loss,  unless  occasioned  by  the  act  of  God  or  the  public  enemy ; 
and  this  becomes  the  terms  of  transportation,  and  may  be  called  the  contract 
of  the  parties,  arising  immediately  upon  the  delivery  of  the  property  for  car- 
riage. But  the  law  only  makes  a  contract  for  the  parties,  or  imposes  a  liabil- 
ity when  they  have  made  no  contract  for  themselves.  The  employer  may  pro- 
cure the  transportation  of  his  property  upon  such  terms  as  he  may  deem  most 
advantageous  to  himself,  if  he  can  procure  the  carrier's  assent  to  such  terms ; 
and,  in  that  event,  the  carrier  is  none  the  less  a  common  carrier,  although 
acting  under  a  special,  and  not  an  implied,  contract.  In  my  judgment,  he 
acts  as  a  common  carrier  so  long  as  he  carries  for  all  Indifferently,  whether 
under  the  common-law  liability,  or  under  a  contract  with  his  employer. 
*  *  *  But  whatever  my  own  view  of  this  sul).iect  may  be  (and  the  court 
expresses  no  opinion  upon  it) — whether  the  carrier  lays  down,  in  the  par- 
ticular instance,  his  public  character  or  not — we  are  all  agreed  that  the  law 
does  not  compel  persons  dealing  with  carriers  to  rely  and  insist  upon  this 
liability  which  it  primarily  imposes  in  their  favor.  In  these,  as  in  all  other 
cases,  the  law  recognizes  the  competency  of  parties  to  manage  their  own  af- 
fairs, and  to  make  such  contracts  in  respect  to  them  as  they  may  deem  to  be 
most  advantageous,  and  when  the  extent  of  the  risk  and  responsibility  of  the 


412  EXCEPTIOXAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4: 

CooLEY,  J.^°  *  *  *  A  much  more  difficult  question  is,  what  shall 
constitute  the  proof  of  a  contract,  in  the  absence  of  distinct  evidence 
that  the  parties  have  consulted  and  agreed  upon  terms?  The  practical 
difficulty,  amounting  almost  to  an  impossibility,  of  bringing  the  carrier 
and  his  employer  together  on  every  occasion  for  the  discussion  of 
terms,  has  led  to  the  adoption  by  carriers  of  a  printed  form  of  contract,, 
which  is  put  into  the  hands  of  the  consignor,  and  by  its  terms  purports 
to  bind  him  to  its  conditions ;  but  it  is  strongly  insisted  that  there  ought 
to  be  more  satisfactory  evidence  of  assent  on  the  part  of  the  consignor 
to  modify  any  of  his  common-law  rights  than  is  derived  from  the  mere 
receipt  of  a  paper  from  the  carrier,  framed  to  suit  the  interest  of  the 
latter,  and  which  the  consignor  may  never  have  read.    *    *    * 

Bills  of  lading  are  signed  by  the  carrier  only;  and  where  a  con- 
tract is  to  be  signed  only  by  one  party,  the  evidence  of  assent  to  its 
terms  by  the  other  party  consists  usually  in  his  receiving  and  act- 
ing upon  it.  This  is  the  case  with  deeds-poll,  and  with  various  classes 
of  familiar  contracts,  and  the  evidence  of  assent  derived  from  the  ac- 
ceptance of  the  contract,  without  objection,  is  commonly  conclusive. 
I  do  not  perceive  that  bills  of  lading  stand  upon  any  different  footing. 
If  the  carrier  should  cause  limitations  upon  his  liability  to  be  inserted 
in  the  contract  in  such  a  manner  as  not  to  attract  the  consignor's  at- 
tention, the  question  of  assent  might  fairly  be  considered  an  open 
one.  Brown  v.  Eastern  R.  R.  Co.,  11  Cush.  (]\Iass.)  97.  And  if 
delivery  of  the  bill  of  lading  was  made  to  the  consignor  under  such 

carrier,  on  the  one  hand,  and  the  rights  and  liabilities  of  his  employer,  on  the 
other,  have  been  ascertained  and  fixed  by  the  contract  of  the  parties  them- 
selves, the  law  applies  the  maxim,  'Expressnm  facit  cessare  tacitnm.'  *  *  * 
What  principle  of  public  policy,  superior  to  that  which  secures  to  every  citi- 
zen the  right  to  control  his  own  affairs,  is  contravened,  or  what  law  is  vio- 
lated by  him,  in  making  the  contract?  He  I'enounces  the  benefit  of  a  liabil- 
ity which  the  law  authorizes  him  to  insist  upon ;  and  by  this  renunciation, 
which  is  voluntary,  and  can  never  be  compulsory,  the  carrier  is  relieved  from 
such  liability." 

■ — In  the  following  jurisdictions,  among  others,  there  are  statutory  restric- 
tions upon  a  common  carrier's  power  to  limit  his  liability  by  contract: 

/oifo— Code,  §  2074;  Powers  v.  Chicago,  etc.,  Co.,  130  Iowa,  615,  lO.j  N.  W. 
34.5  (1905). 

Kansas— Gen.  St.  1807.  c.  69,  §  17;  St.  Louis  &  S.  F.  Ry.  Co.  v.  Sherlock, 
59  Kan.  23,  51  Pac.  899  (1898). 

Kentucky— Const.  §  196;  Adams  Express  Co.  v.  Walker,  119  Ky.  121,  83 
S.  W.  106.  67  L.  R.  A.  412  (1904). 

M  kh  iff  a  n^Comi).  Laws  1897.  §§  5239,  6239;  McMillan  v.  Mich.  R.  Co.,  1(5 
Mich.  79.  93  Am.  Dec.  208  (1867). 

:Xchraska — Const,  art.  11,  §  4 ;  Railroad  Co.  v.  Gardiner,  51  Neb.  70,  70  N. 
W.  508  (1897). 

Texas— Rev.  St.  1895,  art.  320;  Railroad  Co.  v.  Sherwood,  84  Tex.  125,  19 
S.  W.  455,  17  L.  R.  A.  643  (1892). 

Virginia — Code  1904,  §  1294c  (24). 

rnited  States— ^ee  Hepburn  Act,  34  Stat.  pp.  5M,  595  (U.  S.  Comp.  St. 
Supp.  1909,  p.  1149). 

England — Railway  and  Canal  Traffic  Act.  18.54.  17  &  18  Vict.  c.  31 ;  Peek 
V.  No.  Staffordshire  R.  Co.,  10  H.  L.  Cas.  473,  506-7,  509  (186.3). 

10  The  statement  of  facts  has  been  re«Titten,  and  parts  of  the  opinion 
omitted. 


Ch.  4)  LIMITATION    OF   LIABILITY.  413 

circumstances  as  to  lead  him  to  suppose  it  to  be  something  else — as, 
for  instance,  a  mere  receipt  for  money — it  could  not  be  held  binding 
upon  him  as  a  contract,  inasmuch  as  it  had  never  been  delivered  to 
and  accepted  by  him  as  such.  King  v.  Woodbridge,  34:  Vt.  565.  But 
except  in  these  and  similar  cases,  it  cannot  become  a  material  ques- 
tion whether  the  consignor  read  the  bill  of  lading  or  not. 

The  ground  upon  which  it  is  claimed  that  this  becomes  important 
seems  to  be  that  parties  generally  receive  these  contracts  without  read- 
ing them  or  inquiring  into  their  terms,  taking  whatever  the  railroad 
companies  see  fit  to  give  them,  and  that  they  are  thus  liable  to  be  im- 
posed upon  and  defrauded,  unless  the  courts  interfere  to  protect  them. 
Or,  if  we  may  be  allowed  to  state  the  same  thing  in  different  words, 
as  everybody  is  negligent  in  these  matters,  and  will  not  give  the  neces- 
sary attention  to  their  contracts  that  is  essential  to  the  protection  of 
their  interests,  the  courts  must  interfere  to  set  them  aside  wherever 
extraneous  evidence  of  actual  assent  is  not  produced.  If  the  courts 
possess  any  such  power,  and  it  is  expedient  to  exercise  it,  it  may  be 
important  to  consider,  at  the  outset,  whither  it  will  lead  us. 

Bills  of  lading  are  not  the  only  contracts  that  are  received  in  this 
•careless  way.  Deeds,  mortgages,  and  bills  of  sale  are  every  day  given 
and  received  without  being  read  by  the  parties,  though  they  may  con- 
tain provisions  which  have  not  been  the  subject  of  special  negotiation. 
Policies  of  insurance,  which  more  nearly  resemble  the  instruments  now 
in  question,  are  still  more  often  received  without  examination.  In 
the  absence  of  fraud,  accident,  or  mistake,  no  one  ever  supposed  it  was 
competent  for  the  courts  to  reform  such  instruments  in  behalf  of  a 
party  who  would  not  inform  himself  of  their  purport.  Nothing  would 
be  certain  or  reliable  in  business  transactions  if  contracts  were  liable 
to  be  set  aside  on  grounds  like  these.  The  law  does  not  assume  to  be 
the  guardian  of  parties  compotes  mentis  in  respect  to  the  lawful  con- 
tracts which  they  may  make,  but  it  proceeds  upon  the  idea  that  where 
fraud  has  not  been  practiced,  and  mistake  has  not  intervened,  the 
general  interests  of  the  community  are  best  subserved  by  leaving 
every  man  to  the  protection  of  his  own  observation  and  diligence. 

It  is  argued  that  the  consignor  had  no  occasion  to  examine  the 
bill  of  lading,  because  he  had  a  right  to  suppose  it  recognized  the 
common-law  liability.  But  the  common  law  does  not  establish  the 
rates  of  freight,  or  the  place  of  delivery ;  and  for  stipulations  respect- 
ing these,  at  least,  every  man  must  examine  his  bill  of  lading.  More- 
■over,  we  cannot  overlook  the  facts  that  a  large  proportion  of  these 
instruments  are  issued  with  restrictive  clauses,  and  that  carriers  ar- 
range their  tariffs  of  freights  in  the  expectation  that  they  will  be 
accepted.  These  facts  are  so  well  understood  that  a  person  exer- 
cising ordinary  diligence  in  his  own  affairs  would  not  be  likely  to  ac- 
cept one  of  these  instruments  without  examination,  if  he  expected  to 
hold  the  carrier  to  the  liability  which  would  rest  upon  him  in  the  ab- 
sence of  special  contract.    *    *    * 


414  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

It  is  said,  however,  that  these  special  contracts  must  be  held  void 
for  want  of  consideration  unless  it  is  shown  that,  in  return  for  the 
release  of  the  carrier  from  his  extraordinary  liability,  he  on  his  part 
has  made  a  deduction  in  the  rates  of  freight.  What  does  appear  in 
the  present  case  is,  that  the  carrier,  in  consideration  of  the  promise 
by  the  consignor  to  release  him  from  certain  liabilities,  and  to  pay  him 
certain  moneys,  agrees  on  his  part  to  carry  the  goods  for  the  sum 
named.  I  do  not  see  how  we  can  assume  that  the  charges  are  the 
same  that  they  would  have  been  had  the  release  been  omitted.  If  by 
the  charter  of  a  railroad  corporation  maximum  rates  had  been  estab- 
Hshed,  and  the  corporation  had  attempted  to  charge  these  rates  for 
a  restricted  liability,  a  case  would  be  presented  coming  within  the 
principle  of  this  objection.  Bissell  v.  New  York  Central  R.  R.  Co., 
25  N.  Y.  449,  82  Am.  Dec.  369,  per  Selden,  J.  But  no  such  case  is 
before  us  here,  and  a  consideration  appears  which,  for  aught  that  is 
shown  by  the  record,  is  sufficient. 

It  was  also  said  on  the  argument  that  a  rule  such  as  we  have  now 
laid  down  would  place  the  public  at  the  mercy  of  the  railroad  com- 
panies, who  would  refuse  to  give  any  other  than  restricted  bills  of 
lading.  It  is  enough  for  us  to  say  in  this  case  that  railroad  companies 
chartered  as  common  carriers  have  no  such  power,  and  the  consignor 
can  assent  to  the  restriction  in  each  instance,  or  refuse  to  assent,  at 
his  option.  If  the  corporations  decline  to  transport  goods  as  common 
carriers  when  that  is  the  condition  upon  which  they  hold  their  fran- 
chises, there  would  be  no  difficulty,  I  apprehend,  in  applying  the  proper 
remedy.     *     *     * 

For  the  eggs  delivered  to  the  defendants  at  Adrian  and  Hudson, 
under  an  exemption  from  liability  for  losses  in  consequence  of  fire 
in  the  depot,  the  defendants  cannot  be  held  liable  under  the  principles 
hereinbefore  stated.^^ 


11  For  cases  in  accord,  see  Carriers,  9  Cent.  Dig.  §  693,  4  Dec.  Dig.  §§  53, 
153.  In  Mo.,  K.  &  T.  Ry.  Co.  v.  Patrick,  144  Fed.  G32,  75  C.  C.  A.  434  (190G), 
the  court  held  binding  a  limitation  of  liability  in  a  bill  of  lading  delivered  un- 
signed to  an  agent  of  the  shipper  who  could  not  read.  In  Watson  v.  Railroad, 
104  Tenn.  194,  56  S.  W.  1024,  49  L.  R.  A.  454  (1900),  a  like  decision  was  made 
as  to  a  passenger  ticket. 

In  Anchor  Line  v.  Dater,  68  111.  369  (1873),  Breese,  O.  J.,  said:  "The  bill 
of  lading  delivered  to  the  consignors  relieves  the  carrier  from  liability  for 
loss  by  fire,  while  the  property  is  in  transit  or  while  in  depots,  etc.  This  bill 
of  lading,  appellants  insist,  was  the  contract  of  the  parties,  by  which  they  are 
bound,  and  the  provisions  of  which  are  plainly  and  easily  understood  by  any 
business  man,  and  the  assent  of  the  shipper  to  the  terms  contained  in  it 
should  be  presumed.  The  court,  sitting  as  a  jury,  did  not  tind  evidence  suf- 
ficient to  justify  it  in  presuming  assent  from  the  mere  acceptance  of  the  re- 
ceipt. The  shipper  had  no  alternative  but  an  acceptance  of  it,  and  his  assent 
to  its  conditions  cannot  be  inferred  from  that  fact  alone.  It  is  in  proof  that 
its  terms  and  conditions  were  not  known  to  these  shippers,  although  they 
had  accepted  a  large  number  of  them  in  the  course  of  their  business  with 
the  appellants.  The  terms  and  conditions  of  this  bill  of  lading,  or  i*eceipt, 
•were  inserted  for  the  purpose  of  limiting  the  liability  appellants  were  under 
by  the  common  law     They  should  appear  plainly  in  the  instrument,  be  un- 


Ch.  4)  LIMITATION    OF   LIABILITY.  415 

MADAN  V.  SHERARD. 
(Court  of  Appeals  of  New  York,  1878.     73  N.  Y.  329,  29  Am.  Rep.  ].j3.) 

*  *  *  This  action  was  brought  against  defendant,  as  president 
of  the  New  York  Transfer  Company,  a  company  engaged  as  a  com- 
mon carrier  in  the  business  of  transferring  baggage  in  the  city  of  New 
York,  to  recover  the  vahie  of  a  trunk  and  its  contents,  alleged  to  have 
been  lost  while  in  its  hands.  The  answer  alleged  that  the  trunk  was 
received  by  the  company  under  a  special  contract,  which,  among  other 
things,  limited  defendant's  liability  to  $100.     *     *     * 

Andrews,  J.^-  The  circumstances  under  which  the  plaintiff  re- 
ceived the  receipt  or  paper  alleged  to  be  a  contract  are  very  similar  to 
those  in  the  case  of  Blossom  v.  Dodd,  43  N.  Y.  270,  3  Am.  Rep.  701. 
The  defendant's  agent  came  into  the  car  in  which  the  plaintiff  was 
seated,  called  for  baggage,  received  the  plaintiff's  check  for  his  trunk, 
and  directions  for  its  delivery,  made  an  entry  in  pencil  in  his  tally 
book,  marked  on  the  receipt  the  date,  the  number  of  the  check,  and  the 
place  of  delivery  of  the  trunk,  handed  it  to  the  plaintiff  and  immediate- 
ly passed  on;  nothing  further  being  said  to  or  by  the  plaintiff'.  The 
plaintiff  folded  the  paper,  and  w^ithout  looking  at,  or  reading  it,  put  it 
in  his  pocket.  The  car  was  dimly  lighted,  and  the  plaintiff  could  not 
in  the  place  where  he  was  seated  have  read  the  receipt.  He  saw  the 
agent  writing  on  the  paper,  and  supposed  he  was  writing  his  address, 
and  in  answer  to  a  question,  put  on  cross-examination,  the  plaintiff 
said  that  he  knew  the  paper  related  to  the  carriage  of  his  baggage. 

The  receipt  is  an  exhibit  in  the  case,  and  it  purports  to  be  a  contract 
of  very  special  character  between  the  plaintiff  and  the  defendant  for 
the  carriage  of  the  property  represented  by  the  check.     It  contains 

derstoocl  by  the  coiisijinor.  and  knowingly  accepted  as  the  contract  of  the 
parties,  and  intended  to  evidence  the  terms  of  the  contract.  These  were 
points  for  the  court  trying  the  case,  and  the  finding  of  the  court  in  this  re- 
spect cannot  be  disturbed." 

Ace.  So.  Ex.  Co.  V.  Moon,  39  Miss.  822  (1803),  semble.  And  see  Gaines  v. 
Union,  etc.,  Co.,  28  Ohio  St.  418.  443  (1870).  But  compare  Cin..  etc.,  K.  Co. 
V.  Berdan.  22  Ohio  Cir.  Ct.  R.  32G.  12  O.  C.  D.  481  (1901).  See,  further,  as  to 
the  law  of  Illinois.  Merchants'  Despatch  Tr.  Co.  v.  Joesting.  89  111.  152  (1878); 
Atchison,  etc.,  Rv.  Co.  v.  Bilinskv.  107  111.  App.  504  (1903);  Wabash  R.  Co. 
V.  Thomas.  222  111.  337,  78  N.  E.  777,  7  L.  R.  A.  (N.  S.)  1041  (1900),  criticised 
in  1  Illinois  Law  Rev.  400;  Coates  v.  C,  R.  I.  &  P.  R.  Co.  239  111.  1.54,  87 
N  E  9''9  (1909);  Rev.  St.  111.  c.  114.  §  33,  interpreted  in  Chicago  &  X.  W. 
R.  Co.  v.  Chapman,  133  111.  90,  104,  24  X.  E.  417,  8  L.  R.  A.  508,  23  Am.  St. 
Rep.  587  (1890). 

In  some  states  statutes  require  assent  to  limitation  of  liability  to  be  evi- 
denced otherwise  than  by  mere  acceptance  of  a  hill  of  lading :  e.  g..  Dakota, 
Civ  Code  §  12G3 ;  South  Dakota.  Civ.  Code.  §  l.">84 ;  Ilartwell  v.  Xo.  P.  Ex. 
Co.,  5  Dak.  403,  41  X.  W.  732.  3  L.  R.  A.  .342  (1889) ;  Gcorfiia.  Code,  §  2008 ; 
Central  R.  Co.  v.  Hasselkus.  91  Ga.  382,  17  S.  E.  838,  44  Am.  St.  Rep.  37  (1893) ; 
Michigan,  Comp.  Laws  1897,  §§  .5239,  0239. 

12  Parts  of  the  statement  of  facts  are  omitted. 


416  EXCEPTIONAL   LIARILITY   OF   COMMON  CAURIER.  (Part  4 

several  hundred  printed  words,  and  acknowledges  the  receipt  by  the 
defendant  of  the  trunk,  "subject  to  this  bill  of  lading,"  which  in  the 
margin  is  designated  "domestic  bill  of  lading,"  to  be  delivered  in  Forty- 
Seventh  street.  New  York,  and  then  follows  a  declaration  that  it  is 
mutually  agreed  that  the  defendant  shall  not  be  liable  for  "merchan- 
■dise,  money  or  jewelry,  contained  in  baggage,  nor  for  loss  by  fire,  nor 
in  case  of  loss  or  damage  or  detention  by  reason  of  negligence  or  oth- 
erwise, for  an  amount  exceeding  $100  upon  any  trunk,  etc.,  including 
the  contents  thereof,  unless  specially  agreed  for  in  writing  and  noted 
hereon,  and  the  extra  risk  paid  therefor." 

There  is  a  further  provision  that  the  company  shall  not  be  liable 
for  baggage  delivered  to  railroad,  steamboat  or  steamship  lines,  after 
the  same  has  been  left  at  the  usual  place  of  delivery,  and  also  that  it 
"shall  not  be  liable  for  loss  or  damage  unless  the  claim  therefor  be 
made  in  writing  with  this  contract  annexed,  at  their  principal  office, 
within  thirty  days  after  such  loss  or  damage,"  and  the  paper  con- 
cludes with  the  statement  "that  the  owner  hereby  agrees  that  the 
company  shall  only  be  liable  as  above." 

This  receipt  differs  in  some  respects  from  the  one  in  Blossom  v. 
Dodd.  It  is  printed  in  larger  type,  and  upon  a  larger  piece  of  paper. 
The  words  "domestic  bill  of  lading"  were  not  in  the  receipt  in  the 
case  of  Blossom  v.  Dodd,  nor  did  it  contain  in  terms  any  exemption 
from  liability  in  case  of  loss  by  negligence.  The  main  difference  in 
the  general  appearance  of  the  two  receipts  is  that  the  one  in  this  case 
can  be  more  easily  read,  and  the  fact  that  it  was  intended  as  a  spe- 
cial contract  would  be  more  readily  discovered  on  a  casual  observa- 
tion. 

The  judge  on  the  trial  submitted  it  to  the  jury  to  find  whether  the 
plaintiff  accepted  the  receipt  as  the  contract  between  him  and  de- 
fendant, in  respect  to  the  trunk,  and  charged  that,  if  it  was  presented 
to  and  received  by  him  as  the  contract,  he  could  not  recover  more 
than  $100,  but  that,  if  the  plaintiff  did  not  know  that  it  was  prof- 
fered as  a  contract,  and  received  it,  not  knowing  its  contents  and 
supposing  that  it  was  given  simply  to  enable  him  to  trace  his  prop- 
erty, or  as  a  mere  receipt,  then  the  plaintiff  was  not  bound  by  its  lim- 
itations. The  learned  judge  subsequently  qualified  this  part  of  his 
charge,  by  the  statement  that  if  the  paper  was  handed  to  the  plain- 
tiff under  such  circumstances  that  he  might  have  read  it,  and  neglected 
to  do  so,  he  was  bound  by  its  contents.  The  defendant's  counsel  re- 
quested the  court  to  instruct  the  jury,  as  matter  of  law,  that  the  de- 
livery of  the  receipt  to  the  shipper,  at  the  time  of  the  receipt  of  the 
property,  constituted  a  contract  under  the  circumstances  of  the  case, 
and  that  the  plaintiff  was  limited  in  his  recovery  to  $100.  The  court 
refused  this  instruction,  and  the  defendant  excepted.  The  jury  ren- 
dered a  verdict  for  the  full  value  of  the  trunk  and  contents. 

We  are  of  the  opinion  that  the  charge  made  was  as  favorable  to  the 


Ch.  4)  LIMITATION    OF   LIABILITY.  417 

defendant  as  he  was  entitled  to.  It  is  not  denied  that  the  defendant 
is  Hable  for  the  full  value  of  the  trunk  and  its  contents,  unless  the 
common-law  liability  of  the  carrier  has  been  modified  by  contract  with 
the  plaintiff.  The  defendant  was,  therefore,  bound  to  establish,  in 
order  to  relieve  itself  from  liability  for  the  full  damages  sustained  by 
the  plaintiff,  that  there  was  a  contract  between  the  parties  for  the 
carriage  of  the  trunk,  upon  the  special  terms  contained  in  the  receipt. 
The  decision  in  Blossom  v.  Dodd  is  an  authority  that  no  such  con- 
tract arises  in  law  from  the  acceptance  of  a  receipt  under  the  circum- 
stances of  this  case.  They  do  not  justify  the  inference  or  implication 
that  the  plaintiff  assented  to  be  bound  by  the  special  contract  contained 
in  the  receipt.  There  was  no  explanation  of  the  contents  of  the  pa- 
per, no  conversation  indicating  that  the  trunk  was  to  be  carried  on  spe- 
cial terms,  and  no  opportunity  afforded  to  the  plaintiff  to  assent  to 
or  dissent  from  the  alleged  contract.  To  infer,  under  the  circum- 
stances, an  assent  on  his  part  to  a  contract  exempting  the  carrier 
absolutely  from  responsibility  for  loss  in  certain  cases,  and  limiting 
his  liability  in  any  case  to  $100,  including  cases  of  loss  by  the  car- 
rier's own  negligence,  would  be  making  an  inference  contrary  to  the 
natural  import  of  the  transaction.  The  plaintiff,  on  receiving  the  pa- 
per, had,  from  the  nature  and  circumstances  of  the  transaction,  a 
right  to  regard  it  as  designed  simply  as  a  voucher  to  enable  him  to 
follow  and  identify  his  property;  and  if  he  had  no  notice  that  it  was 
intended  to  subserve  any  other  purpose,  or  that  it  embodied  the  terms 
of  a  special  contract,  his  omission  to  read  it  was  not  per  se  negligence. 
When  a  contract  is  required  to  be  in  writing,  and  a  party  receives 
a  paper  as  a  contract,  or  when  he  knows  or  has  reason  to  suppose 
that  a  paper  delivered  to  him  contains  the  terms  of  a  special  contract, 
he  is  bound  to  acquaint  himself  with  its  contents,  and  if  he  accepts 
and  retains  it,  he  will  be  bound  by  it,  although  he  did  not  read  it.  But 
this  rule  cannot,  for  the  reasons  stated,  be  applied  to  this  case,  and 
,the  court  properly  refused  to  charge,  as  matter  of  law,  that  the  de- 
livery of  the  receipt  created  a  contract  for  the  carriage  of  the  trunk, 
under  its  terms.  The  question  whether,  in  a  particular  case,  a  party 
receiving  such  a  receipt  accepted  it  with  notice  of  its  contents,  is  one 
of  evidence  to  be  determined  by  the  jury.  The  fact  of  notice  may  be 
proved  by  direct  or  circumstantial  evidence.  If  circumstantial  evi- 
dence is  relied  upon,  the  range  of  the  testimony  permissible  can  only 
be  restricted  at  the  point  where  the  circumstances  sought  to  be  shown 
cease  to  have  any  relevancy  to  the  inquiry.  The  fact  that  the  receipt 
was  printed  in  large  type,  and  could  be  easily  read ;  that  it  was  re- 
ceived in  the  daytime,  or  when  there  was  sufficient  light  to  enable  the 
traveler  to  read  it;  that  he  was  acquainted  with  the  methods  of  the 
business — these  and  other  facts  may  be  shown,  not  as  conclusive 
against  the  recovery,  but  as  bearing  upon  the  ultimate  fact  to  be  prov- 
en, that  the  party,  when  he  accepted  the  receipt,  knew  of  its  limita- 
Green  Carb. — 27 


418  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part    4 

tions,  or  that  it  contained  special  terms  for  the  carriage  of  the  prop- 
erty. 

We  think  that  no  error  was  committed  on  the  trial,  and  that  the 
judgment  should  be  affirmed.    All  concur,  except  ^Miller,  J.,  absent. 

Judgment  affirmed.^* 


FONSECA  V.  CUNARD  STEAMSHIP  CO. 

(Supreme  Judicial   Court  of  Massachusetts,   1891.     153  Mass.  553,  27  N.   E. 
605,  12  L.  R.  A.  340,  25  Am.  St.  Rep.  600.) 

Contract,  with  a  count  in  tort  against  a  common  carrier  for  dam- 
age to  plaintiff's  baggage.  The  case  was  referred  to  an  auditor,  and 
the  parties  agreed  that  his  findings  of  fact  should  be  final.  He  found 
that  plaintiff  was  a  steerage  passenger  on  defendant's  steamer  from 
Liverpool  to  Boston,  and  that  on  the  voyage  plaintiff's  baggage  was 
ruined  by  defendant's  negligence.  Plaintiff  had  procured  his  ticket 
of  defendant  in  London.  It  was  entitled  in  bold  type  near  its  top 
"Passengers'  Contract  Ticket."  On  the  margin  it  contained  the  fol- 
lowing notice,  among  others :  "All  passengers  are  requested  to  take 
notice  that  the  owners  of  the  ship  do  not  hold  themselves  responsible 
for  *  *  *  damage  to  luggage."  At  the  bottom  was  printed :  "Pas- 
sengers' luggage  is  carried  only  upon  the  conditions  set  forth  on  the 
back  hereof."  On  the  back,  among  other  things,  was  the  following: 
"The  company  is  not  liable  for  loss  of  or  injury  to  the  passenger  or 
his  luggage,  or  delay  in  the  voyage,  whether  arising  from  the  act  of 
God,  *  *  *  negligence  of  the  company's  servants,  *  *  *  or 
from  any  other  cause  of  whatsoever  nature."  When  plaintiff  received 
this  ticket  his  attention  was  not  called  to  the  fact  that  it  contained 
a  limitation  of  liability,  and  he  examined  it  only  enough  to  see  that  it 

13  Ace.  Grossman  v.  Dodd.  63  Hun,  324.  17  X.  Y.  Supp.  855  (1892),  affirmed 
137  N.  Y.  .599,  33  N.  E.  642  (1893) :  Springer  v.  ^yestcott.  166  N.  Y.  117,  59  N. 
E.  693  (1901)  ;  Strong  v.  Ix)ng  Island  R.  Co.,  91  App.  Div.  442.  86  N.  Y.  Supp. 
911  (1904).  See,  also,  Buckland  v.  Adams  Ex.  Co.,  97  Mass.  124,  93  Am.  Dec. 
68  (1867);  Woolsey  v.  L.  I.  R.  Co.,  106  App.  Div.  228,  94  N.  Y.  Supp.  .56 
(1905).  Compare  Belger  v.  Dinsmore,  .51  X.  Y.  166.  10  Am.  Rep.  575  (1872); 
Kirkland  v.  Dinsmore,  62  X.  Y.  171,  20  Am.  Rep.  475  (1875);  Gerrv  v.  Am. 
Ex.  Co.,  100  Me.  519,  62  Atl.  498  (1905) ;  Toy  v.  L.  I.  Co.,  26  Misc.  Rep.  792, 
56  X.  Y.  Supp.  182  (18.99);  Mears  v.  X.  Y..  etc.,  R.  Co.,  75  Conn.  171,  52  Atl. 
610.  56  L.  R.  A.  884,  96  Am.  St.  Rep.  192  (1902). 

In  Kirkland  v.  Dinsmore,  supra,  plaintiff,  on  delivering  to  an  express  com- 
pany a  package  containing  money,  took  a  receipt  which  stated  the  amoimt 
of  money,  the  name  and  residence  of  the  consignee,  and  that  it  was  received 
upon  terms  and  conditions  printed  in  the  body  of  the  instrument,  among 
which  was  an  exemption  of  fire.  The  money  was  burned  in  transit.  An- 
drews, J.,  said:  "The  plaintiff  saw  the  signature  of  the  agent  and  the  print- 
ed matter  preceding  it.  and  the  facts  found  leave  no  room  to  douI)t  that 
when  he  took  the  receipt  he  understood  that  it  contained  a  contract  on  the 
part  of  the  defendant  in  respect  to  the  carriage  of  the  money.  *  *  *  The 
defendant  had  a  right  to  infer,  from  the  plaintiff's  acceptance  of  the  receipt 
without  dissent,  that  he  assented  to  its  terms,  and  now,  after  a  loss  has 
occurred,  it  is  too  late  to  object  that  he  is  not  bound." 


Ch.  4)  LIMITATION    OF  LIABILITY.  419 

entitled  him  to  his  passage.  The  judge,  on  these  facts,  ruled  that 
the  validity  of  the  negligence  exemption  depended  upon  the  law  of 
England,  by  which  law  it  was  valid.  He  also  ruled  that  no  conclu- 
sive presumption  of  assent  to  its  stipulations  arises  from  the  acceptance 
of  a  passenger  ticket,  and  that  assent  was  not  proved,  and  found  for 
the  plaintiff.  The  case  is  now  by  agreement  reported  to  the  Supreme 
Judicial  Court,  judgment  to  be  entered  according  to  their  determina- 
tion as  to  the  correctness  of  the  rulings. 

Knowlton,  J.^*  *  *  *  The  principal  question  before  us  is 
whether  the  plaintiff,  by  reason  of  his  acceptance  and  use  of  his  ticket, 
shall  be  conclusively  held  to  have  assented  to  its  terms.  It  has  often 
been  decided  that  one  who  accepts  a  contract  and  proceeds  to  avail 
himself  of  its  provisions  is  bound  by  the  stipulations  and  conditions 
expressed  in  it,  whether  he  reads  them  or  not.  Grace  v.  Adams,  100 
Mass.  50.5,  97  Am.  Dec.  117,  1  Am.  Rep.  131 ;  Insurance  Co.  v.  Buf- 
fum,  115  Mass.  313;  Rice  v.  Manufacturing  Co.,  2  Cush.  80;  Hoad- 
ley  V.  Transportation  Co.,  115  Mass.  301,  15  Am.  Rep.  106  ;  Insur- 
ance Co.  V.  Railroad  Co.,  72  N.  Y.  90,  28  Am.  Rep.  113.  This  rule  is 
as  applicable  to  contracts  for  the  carriage  of  persons  or  property  as 
to  contracts  of  any  other  kind.  Grace  v.  Adams,  ubi  supra;  Railroad 
Co.  V.  Chipman,  146  Mass.  107,  11  N.  E.  910,  4  Am.  St.  Rep.  293; 
Parker  v.  Railway  Co.,  2  C.  P.  Div.  416,  428 ;  Harris  v.  Railway  Co., 
1  Q.  B.  Div.  515 ;  York  Co.  v.  Railroad  Co.,  3  Wall.  107,  18  L.  Ed. 
170;  Hill  V.  Railroad  Co.,  73  N.  Y.  351,  29  Am.  Rep.  163.  The  cases 
in  which  it  is  held  that  one  who  receives  a  ticket  which  appears  to  be 
a  mere  check  showing  the  points  between  which  he  is  entitled  to  be 
carried,  and  which  contains  conditions  on  its  back  which  he  does  not 
read,  is  not  bound  by  such  conditions,  do  not  fall  within  this  rule. 
Brown  v.  Railway  Co.,  11  Cush.  97;  Alalone  v.  Railroad  Corp.,  12 
Gray,  388,  74  Am.  Dec.  598;  Henderson  v.  Stevenson,  L.  R.  2  H. 
L.  Sc.  470;  Quimby  v.  Vanckrbilt,  17  N.  Y.  306,  72  Am.  Dec.  469; 
Railway  Co.  v.  Stevens,  95  U.  S.  655,  24  L.  Ed.  535.  Such  a  ticket 
does  not  purport  to  be  a  contract  which  expressly  states  the  rights  of 
the  parties,  but  only  a  check  to  indicate  the  route  over  which  the  pas- 
senger is  to  be  carried,  and  he  is  not  expected  to  examine  it  to  see 
whether  it  contains  any  unusual  stipulations. 

The  precise  question  in  the  present  case  is  whether  the  "contract 
ticket''  was  of  such  a  kind  that  the  passenger  taking  it  should  have 
understood  that  it  was  a  contract  containing  stipulations  which  would 
determine  the  rights  of  the  parties  in  reference  to  his  carriage.  If 
so,  he  would  be  expected  to  read  it,  and,  if  he  failed  to  do  so,  he  is 
bound  by  its  stipulations.  It  covered  with  print  and  writing  the  great- 
er part  of  two  large  quarto  pages,  and  bore  the  signature  of  the  de- 

1*  The  statemeut  of  facts  has  been  rewritten,  and  part  of  tbe  opinion 
omitted. 


420  EXCEPTIONAL   LIABILITY   OP   COMMON  CARRIER.  (Part   4 

fendant  company,  affixed  by  its  agent,  with  a  blank  space  for  the  sig- 
nature of  the  passenger.  The  fact  that  it  was  not  signed  by  the  plain- 
titf  is  immaterial.  Quimby  v.  Railroad  Co.,  150  Alass.  365,  23  N.  E. 
205,  5  Iv.  R.  A.  846,  and  cases  there  cited.  It  contained  elaborate 
provisions  in  regard  to  the  rights  of  the  passenger  on  the  voyage,  and 
even  went  into  such  detail  as  to  give  the  bill  of  fare  for  each  meal 
in  the  day  for  every  day  of  the  week.  No  one  who  could  read  could 
glance  at  it  without  seeing  that  it  undertook  expressly  to  prescribe  the 
particulars  which  should  govern  the  conduct  of  the  parties  until  the 
passenger  reached  the  port  of  destination.  In  that  particular  it  was 
entirely  unlike  the  pasteboard  tickets  which  are  commonly  sold  to  pas- 
sengers on  railroads.  In  reference  to  this  question  the  same  rules  of 
law  apply  to  a  contract  to  carry  a  passenger  as  to  a  contract  for  the 
transportation  of  goods. 

There  is  no  reason  why  a  consignor  who  is  bound  by  the  provisions 
of  a  bill  of  lading  which  he  accepts  without  reading  should  not  be 
equally  bound  by  the  terms  of  a  contract  in  similar  form  to  receive  and 
transport  him  as  a  passenger.  In  Henderson  v.  Stevenson,  ubi  supra, 
the  ticket  was  for  transportation  a  short  distance — from  Dublin  to 
Whitehaven — and  the  passenger  was  held  not  bound  to  read  the  notice 
on  the  back  because  it  did  not  purport  to  be  a  contract,  but  a  mere 
check  given  as  evidence  of  his  right  to  carriage.  In  later  English 
cases  it  is  said  that  this  decision  went  to  the  extreme  limit  of  the  law, 
and  it  has  repeatedly  been  distinguished  from  cases  where  the  ticket 
was  in  a  different  form.  Parker  v.  Railway  Co.,  2  C.  P.  Div.  416, 
428 ;  Harris  v.  Railway  Co.,  1  Q.  B.  Div.  515 ;  Burke  v.  Railway  Co., 
5  C.  P.  Div.  1.  The  passenger  in  the  last-mentioned  case  had  a  coupon 
ticket,  and  it  was  held  that  he  was  bound  to  know  what  was  printed 
a?  a  part  of  the  ticket.  Steers  v.  Steamship  Co.,  57  N.  Y.  1,  15  Am. 
Rep.  453,  is  in  its  essential  facts  almost  identical  with  the  case  at  bar, 
and  it  was  held  that  the  passenger  was  bound  by  the  conditions  printed 
on  the  ticket.  In  Quimby  v.  Railroad  Co.,  ubi  supra,  the  same  prin- 
ciple was  applied  to  the  case  of  a  passenger  traveling  on  a  free  pass, 
and  no  sound  distinction  can  be  made  between  that  case  and  the  case 
at  bar. 

We  are  of  opinion  that  the  ticket  delivered  to  the  plaintiff  pur- 
ported to  be  a  contract,  and  that  the  defendant  corporation  had  a  right 
to  assume  that  he  assented  to  its  provisions.  All  these  provisions 
are  equally  binding  on  him  as  if  he  had  read  them.  The  contract  be- 
ing valid  in  England,  where  it  was  made,  and  the  plaintiff's  acceptance 
of  it  under  the  circumstances  being  equivalent  to  an  express  assent 
to  it,  and  it  not  being  illegal  or  immoral,  it  will  be  enforced  here, 
notwithstanding  that  a  similar  contract  made  in  Massachusetts  would 
be  held  void  as  against  public  policy.  Greenwood  v.  Curtis,  6  Mass. 
358,  4  Am.  Dec.  145;  Forepaugh  v.  Railroad  Co.,  128  Pa.  217,  18 
Atl.  503,  5  L.  R.  A.  508,  15  Am.  St.  Rep.  672,  and  cases  cited;    In 


Ch.  4)  LIMITATION    OF   LIABILITY  421 

re  Missouri  S.  S.  Co.,  42  Ch.  Div.  321,  326,  327;  Liverpool  &  G.  W. 
Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397,  9  Sup.  Ct.  Rep.  469,  33 
L.  Ed.  788. 

Judgment  for  the  defendant.^ ^ 

15  For  tickets  of  such  character  that  unknown  stipulations  in  them  were 
held  ineffective,  see  Camden,  etc..  Co.  v.  Baldauf,  16  Pa.  67.  5.5  Am.  Dec. 
481  (1851)  ;  Bait.  &  O.  R.  Co.  v.  Campbell.  36  Ohio  St.  647,  38  Am.  Rep.  617 
(1881) ;  Mauritz  v.  N.  Y.,  etc.,  R.  Co.  (C.  C.)  23  Fed.  765  (1884)  ;  Ranchau  v.  Rut- 
land R.  Co.,  71  Vt.  142,  43  Atl.  11.  76  Am.  St.  Rep.  761  (1899);  Norman  v.  So.  Ry. 
Co..  65  S.  C.  517,  44  S.  E.  83,  95  Am.  St.  Rep.  809  (191)2);  Richardson  v. 
Rowntree,  [1894]  App.  Cas.  217;  Mann  Car  Co.  v.  Dupre,  54  Fed.  646,  650, 
4  C.  C.  A.  540.  21  L.  R.  A.  289  (1893),  berth  check. 

In  Hutchins  v.  Pa.  R.  Co.,  181  N.  Y.  186,  73  N.  E.  972,  106  Am.  St.  Rep. 
537  (lfK).5),  a  throu.gh  coupon  ticket  provided  that  liability  for  baggage  should 
not  exceed  $1(X).  The  trial  court  directed  a  verdict  of  .$160  for  lost  baggage. 
The  Court  of  Appeals  affirmed  the  judgment.  Yann,  J.,  said:  "The  defend- 
ant failed  to  conclusively  establish  a  limitation  by  special  contract  of  its 
common-law  liability  as  a  carrier.  Jennings  v.  Grand  Trunk  Ry.,  127  N. 
Y.  438,  28  N.  E.  394.  The  form  of  the  ticket  suggests  a  proposition  to  make 
such  a  contract,  for  there  was  appended  thereto  the  sentence,  'I  hereby 
agree  to  all  the  conditions  of  the  above  contract,'  with  a  blank  for  the  sig- 
nature of  the  purchaser,  and  another  for  the  signature  of  the  selling  agent 
as  a  witness.  The  proposition  was  not  accepted  by  the  plaintiff,  for  she  did 
not  sign  the  ticket,  nor  have  any  reason  to  believe  she  was  expected  to. 
'^he  did  not  assent  to  the  proposition,  nor  agree  to  any  limitation  of  liability 
on  the  part  of  the  defendant,  by  merely  accepting  and  using  the  ticket,  for 
she  did  not  read  it  or  know  its  contents,  nor  was  she  told  to  read  it  or  re- 
quested to  sign  it.  She  asked  for  through  transportation  to  Carlsbad.  N.  M., 
over  the  defendant's  railroad,  and.  when  the  ticket  was  delivered  to  her 
without  request  or  remark  by  its  agent,  she  had  a  right  to  presume  she  was 
getting  what  she  asked  for  and  what  she  paid  for.  A  railroad  ticket  may 
be  a  contract  or  a  voucher;  and  which  the  ticket  of  the  plaintiff  was,  de- 
pended upon  the  inference  to  be  drawn  from  what  was  said  and  done  when 
she  bought  it,  as  well  as  on  the  form  of  the  ticket  and  coupons.  A  ticket 
is  no  notice  of  conditions  concealed  therein  by  tine  print,  unless  the  atten- 
tion of  the  holder  is  in  some  way  directed  to  them.  There  is  no  presumji- 
tion  that  a  passenger  assents  to  the  terms  of  a  complex  ticket  unless  he  has 
notice  of  what  they  are." 

For  tickets  of  such  character  that  stipulations  in  them,  though  unknown, 
were  held  to  bind  the  passenger,  see  Steers  v.  Liverpool  Co.,  57  X.  Y.  1.  15 
Am.  Rep.  4.53  (1874);  Aiken  v.  Wabash  R.  Co..  80  Mo.  App.  8  (ia09i:  \Valker 
V.  Price.  62  Kan.  327.  62  Pac.  ICKll.  84  Am,  St.  Rep.  392  (1000) ;  Holing  v. 
R.  Co..  189  Mo.  219.  88  S.  W.  35  (1905). 

Obscure  Provisions. — Though  a  ticket  or  bill  of  lading  is  accepted  as  em- 
bodying the  contract  of  carriage,  the  recipient,  even  if  he  fails  to  read  it, 
is  not  t)Ound  b.v  provisions  of  which  lie  does  not  know,  if  the.v  are  so  printed 
or  placed  as  not  fairly  to  apprise  him,  should  he  examine  the  document,  that 
thev  are  meant  to  be  a  part  of  his  agreement.  The  Ma.iestic.  166  U.  S.  375. 
17  Sup.  Ct.  .597,  41  L.  Ed.  1039  (1897).  ticket  for  ocean  passage,  with  words 
at  foot,  "See  back,"  and  on  the  back  were  conditions  limiting  liability  for 
bag.gaffe  headed:  "Notice  to  Passengers.  This  contract  is  made  sul).iect  ta 
the'following  conditions";  N.  Y..  N.  H.  &  H.  R.  Co.  v.  Sayles.  87  Fed.  444. 
32  C.  C.  A.  485  (1898).  clause  in  red  ink  stamped  upon  and  at  right  angles 
to  printed  matter  in  bill  of  lading:  Smith  v.  No.  Ger.  Lloyd  (T).  C.)  142  Fed, 
1032  (1905),  stipulation  headed  "Notice"'  in  ticket  for  ocean  passage;  B.  & 
O.  R.  Co.  V.  Doyle.  142  Fed.  669,  74  C.  C.  A.  245  (1906) ;  Lush.  J.,  in  Crooks 
Y.  Allen,  5  Q.  B.  D.  38,  40  (1879),  bill  of  lading  containhig  unusual  excep- 
tions in  tine  print.  Bur  cf.  Ryan  v.  :sr..  K.  &  T.  Co..  65  Tex.  13,  57  Am.  Rep. 
589  (1886).  See,  also.  Brown  v.  Eastern  R.  Co.,  11  Cush.  97  (1853);  La  Bour- 
gogne,  144  Fed.  781,  75  C.  C.  A.  647  (1906);   French  v.  Merchants'  &  Miners' 


422  EXCEPTIONAL   LIABILITY   OF.  COMMON  CARRIER.  (Part  4 

SHELTON  V.   MERCHANTS'   DISPATCH  TRANSP.   CO. 

(Court  of  Appeals  of  New  York,  1874.    59  N.  Y.  258.) 

Appeal  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon  the 
report  of  a  referee  in  an  action  against  a  common  carrier  for  the  loss 

Co.,  199  Mass.  433,  85  N.  E.  424,  19  L.  R.  A.  (N.  S.)  lOOG,  127  Am.  St.  Rep. 
506  (1908). 

Notices. — An  attempt  to  restrict  liability  by  notice  which  would  be  in- 
valid if  the  notice  were  general,  as  by  a  public  announcement  read  by  the 
shipper,  is  equally  invalid  if  the  notice  is  contained  in  the  contract  of  car- 
riage. One  who  takes  a  ticket  or  bill  of  lading,  though  with  knowledge  of 
its  terms,  does  not  thereby  indicate  his  assent  to  conditions  contained  in  it 
which  are  fairly  to  be  interpreted  as  mere  notices  or  statements  of  rules 
not  forming  a  part  of  the  agreement.  Brittan  v.  Barnaby,  21  How.  527,  16 
L.  Ed.  177  (1858),  "Freight  payable  prior  to  delivery  if  required,"  stamped 
on  back  of  bill  of  lading,  and  not  shown  to  have  been  understood  as  p.irt  of 
the  contract ;  Michigan  Cent.  R.  Co.  v.  Hale,  6  Mich.  243  (1859) ;  Western 
Tr.  Co.  V.  Newhall.  24  111.  466,  76  Am.  Dec.  760  (1860);  Railroad  Co.  v.  Manu- 
facturing Co.,  16  Wall.  318.  21  L.  Ed.  297  (1872);  Rawson  v.  Pa.  R.  Co.,  48 
N.  Y.  212,  8  Am.  Rep.  .543  (1872);  St.  Louis,  etc.,  Co.  v.  Xribbey,  6  Kan.  App. 
467.  50  Pac.  4.58  (1897),  "whereas  the  railroad  transports  live  stock  only  as 
per  above  rules." 

In  Mich.  Cent.  R.  Co.  v.  Hale,  supra,  and  Railroad  Co.  v.  Manufacturing 
Co.,  supra,  the  documents  given  by  the  carrier  were  substantially  in  the  fol- 
lowing form:  "Received  from  A.  one  bale  of  wool,  to  be  transported  to 
Detroit  and  there  delivered  to  A.  or  order  upon  payment  of  the  charges 
thereon  and  subject  to  the  rules  and  regulations  e.'itablished  by  the  company, 
of  which  notice  is  given  on  the  back  hereof."  Indorsed:  "Abstract  from  the 
rules  and  regulations  as  per  published  freight  tariff.  The  company  Avill  not 
be  responsible  for  damages  occasioned  by  delays,  *  *  *  and  all  goods  will 
be  at  owner's  risk  while  in  warehouses."  Tlie  carrier  was  held  liable  for 
loss  by  fire  in  warehouse.  Compare  Gerry  v.  Am.  Ex.  Co.,  100  Me.  519,  62 
Atl.  498  (1905),  receipt  signed  by  express  company  in  a  book  of  blank  re- 
ceipts which  they  had  given  to  the  shipper,  which  receipt  contained  the 
'printed  words,  "The  property  to  be  forwarded  subject  to  the  terms  and  con- 
ditions of  the  company's  regular  form  of  receipt  printed  on  the  inside  cover 
of  this  book." 

Limitation  of  Time. — In  some  jurisdictions  the  statement  "Good  only  one 
day  from  date  of  sale"  in  an  ordinary  pasteboard  ticket  is  treated  as  an  at- 
tempt to  limit  by  special  agreement  the  right  to  use  it.  If  the  person  to 
whom  it  is  issued  buys  without  notice,  he  is  entitled  to  use  the  ticket  as  if 
it  were  unrestricted,  and,  if  ejected  from  the  carrier's  vehicle,  niav  sue  in 
tox-t.  Railroad  v.  Turner.  100  Tenn.  213,  47  S.  W.  223.  43  L.  R.  A.  140  (1S97); 
Dagnall  v.  So.  Ry..  69  S.  C.  110.  48  S.*  E.  97  (190.3).  And  see  Louisville  & 
N.  R.  Co.  V.  Gaines.  99  Ky.  411,  36  S.  W.  174,  59  Am.  St.  Rep.  465  (lS9(i).  In 
other  jurisdictions  the  statement  is  treated  as  an  integral  part  of  the  ticket 
indicating  its  temporary  character;  and,  luiless  the  carrier  has  led  the  buyer 
to  believe  it  is  selling  him  a  ticket  of  a  different  sort,  he  cannot  even  get  his 
money  back  if  he  is  not  permitted  to  ride  on  it  after  it  has  expired.  Elmore 
V.  Sands,  54  N.  Y.  512.  13  Am.  Rep.  617  (1874);  Hanlon  v.  111.  Cent.  R.  Co., 
109  Iowa,  136,  80  N.  W.  223  (1899);  Coburn  v.  Morgan's,  etc..  R.  Co.,  105  La. 
398,  29  South.  882.  83  Am.  St.  Rep.  242  (1901);  Freeman  v.  Railway  Co..  71 
Kan.  327.  80  Pac.  592  (1905).  And  see  Boston  &  L.  R.  Co.  v.  Proctor.  1  Allen, 
267,  79  Am.  Dec.  729  (1861);  Johnson  v.  Concord  R.  Co.,  46  N.  H.  213,  88 
Am.  Dec.  199  (1865);  Calloway  v.  Mellett,  15  Ind.  App.  366,  44  N.  E.  198,  57 
Am.  St.  Rep.  238  (1896). 

In  Elmore  v.  Sands,  supra,  Earl,  C,  said:  "The  railroad  company  -was  not 
bound  to  issue  the  ticket  in  advance  of  the  day  on  which  it  was  to  be  used, 
and  had  the  right  to  insist  and  provide  that  it  should  be  used  on  the  day 
■when  it  was  issued.  *  *  *  a  passenger  should  see  to  it,  if  he  prefers  not 
to  pay  in  the  cars,  that  he  has  a  proper  voucher." 


Ch.  4)  LIMITATIOX    OF   LIABILITY.  423 

of  goods  carried.  The  referee  found  that  the  goods  in  question, 
marked  "H,  S.  Shelton,  Janesville,  Wis.,"  were  deUvered  to  defend- 
ant at  New  York  by  H.  B.  Claflin  &  Co.,  from  whom  defendant  had 
bought  them;  that  Claflin  &  Co.  took  receipts  for  the  goods,  which 
a  day  or  two  later  they  exchanged  for  bills  of  lading  containing  this 
clause:  "To  be  forwarded  in  like  good  order  (dangers  of  naviga- 
tion, collisions,  and  fire  *  *  *  excepted)  to  Chicago  depot  only, 
he  or  they  paying  freight  and  charges  for  the  same  as  below."  The 
goods  duly  reached  Chicago,  part  on  the  evening  of  Saturday,  October 
7th,  the  rest  on  the  morning  of  Sunday,  October  8th.  They  were 
put  into  a  freight  house  used  by  defendant,  where  they  were  burned 
in  the  Chicago  fire,  which  broke  out  in  the  evening  of  October  8th. ^'' 

Johnson,  J.  The  referee  refused  to  find  that,  previous  to  the 
shipment  in  question,  H.  B.  Claflin  &  Co.  had  been  large  shippers  by 
the  defendant's  line,  and  had  been  always  accustomed  to  obtain  bills 
of  lading  for  the  goods  shipped ;  and  also  that  the  defendants  were 
carriers  upon  a  route  terminating  at  Chicago,  and  not  extending  to 
Janesville,  Wis. ;  and  that  between  the  latter  points  transportation 
had  to  be  performed  by  separate  and  independent  carriers.  These  mat- 
ters the  referee  refused  to  find,  on  the  ground  that  they  were  imma- 
terial to  the  rights  of  the  parties.  In  this  we  think  he  erred,  and  for 
the  following  reasons : 

Claflin  &  Co.  were  the  agents  of  the  plaintiff  in  respect  to  the  trans- 
portation of  the  goods  in  question.  His  directions  to  them  were  to 
ship  the  goods  to  him  at  Janesville,  Wis.,  by  the  defendant's  line.  The 
extent  of  the  authority  thus  conferred,  was  considered  in  Nelson  v. 
Hudson  River  Railroad  Company,  48  N.  Y.  498.  It  necessarily  ex- 
tends to  the  making  of  such  contracts  as  the  agents,  in  the  honest  ex- 
ercise of  their  discretion,  see  fit  to  make.^^  The  fact  that  the  car- 
riers and  the  agents  employed  have  a  habitual  course  of  dealing  in 
respect  to  contracts  for  transportation,  is  a  material  and  important 
element  in  determining  the  construction  to  be  put  on  their  acts  in  any 
particular  case.  Mills  v.  Mich.  Cent.  Railroad.  45  N.  Y.  623.  6  Am. 
Rep.  152.  The  delivery  by  the  agents  of  the  plaintiff,  to  the  carriers, 
was  made  upon  no  particular  agreement  made  at  the  time.  The  pack- 
ages were  marked  with  the  address  of  the  plaintiff,  and  receipts  were 

16  The  statement  of  facts  has  been  rewritten. 

17  Though  an  agent  to  make  a  contract  of  shipment  has  authority  to  take 
a  bill  of  ladins  containing  usnal  exceptions  (Waklron  v.  Fargo.  170  N.  Y. 
130.  02  N.  E.  1077  [19021).  it  has  been  held  otherwise  as  to  a  cartman  sent  to 
deliver  goods  to  a  carrier  with  a  shipping  order  filled  out  on  a  blank  pro- 
vided by  the  carrier  (Russell  v.  Erie  R.  Co.,  70  N.  J.  Law,  808.  59  Atl.  150. 
67  L.  n.  A.  433  [1904]).  And  see  Hailparn  v.  Joy  S.  S.  Co.,  50  Misc.  Rep.  566, 
99  N.  Y.  Supp.  464  (1906);  Seller  v.  The  Pacific,  1  Or.  409,  Fed.  Cas.  No. 
12,(>44  (1861).  When  goods  are  shipped  by  seller  to  buyer,  usual  exceptions 
in  the  l)ill  of  lading  issued  to  the  seller  are  available  to  the  carrier  in  an 
action  bv  the  buyer.  Nelson  v.  Hud.son  R.  Co..  48  N.  Y.  498  (1872).  Contra: 
Transportation  Co.  v.  Joestiug,  89  111.  152  (1878).  But  see  Mich.  Cent.  R.  Co. 
V.  Boyd,  91  111.  268  (1878). 


424  ExcErxioxAL  liability  of  common  carrier.  (Part  4 

signed  by  the  agents  of  the  defendants,  at  their  receiving  depot  at 
New  York.  These  receipts  were  in  a  bound  receipt-book  belonging  to 
Claflin  &  Co.,  filled  up  by  them,  and  signed  by  the  agents  of  the  de- 
fendants. They  purport  to  be  receipts,  and  not  contracts  for  car- 
riage. They  were  in  the  following  form:  "New  York,  Oct.  2,  1871. 
Received  from  H.  B.  Claflin  &  Co.,  in  good  order  on  board  the  M.. 

D.  for —  the  following  packages,  one  case  D.  G.  marked  H.  S. 

Shelton,  Janesville,  Wis.,"  and  were  signed  "Gleason."  In  a  day  or 
two,  but  after  the  packages  had  been  started  on  their  way,  the  agents 
of  the  plaintiff,  acting  in  accordance  with  the  habitual  mode  of  doing 
this  business,  sent  the  receipts  to  the  defendant's  office,  and  procured 
bills  of  lading  for  the  goods,  the  giving  of  which  was  entered  on  the 
several  receipts.  These  bills  of  lading  expressed  the  actual  contract 
of  carriage  between  the  parties  who  in  fact  made  the  contract,  the 
defendants  on  the  one  hand,  and  H.  B.  Claflin  on  the  other.  When  the 
goods  were  delivered  and  the  primary  receipts  given,  each  of  the  par- 
ties was  acting  in  a  habitual  method,  and  with  a  habitual  understand- 
ing of  what  they  were  engaged  in  doing.  The  receipts  were  pre- 
sented and  signed  with  the  view  and  expectation  on  both  sides  that 
bills  of  lading  were  in  the  usual  course  to  be  subsequently  issued,, 
expressing  the  intentions  and  engagements  of  the  parties.  This  was  / 
their  method  of  dealing,  distinctly  in  their  contemplation  from  the 
beginning,  reasonable  in  itself  and  completely  within  the  authority 
committed  by  the  plaintiff  to  his  agents,  H.  B.  Claflin  &  Co.  Any  at- 
tempt on  their  part  to  claim  a  different  agreement  would  have  been 
an  act  of  bad  faith ;  because  it  would  have  been  a  departure  from  the 
understanding  based  upon  the  previous  course  of  dealing  of  these  par- 
ties. In  the  view  we  take  of  the  relations  and  acts  of  these  parties, 
the  matters  of  fact  which  the  referee  held  to  be  immaterial  were  plain- 
ly material,  because  they  were  essential  to  the  disclosure  of  the  actual 
contract  of  the  parties.  The  bills  of  lading  were  obtained  by  the 
plaintiff's  agents,  in  the  exercise  of  their  original  authority  to  con- 
tract with  the  defendants  for  transportation,  and  these  controlled  the 
rights  of  the  parties  and  displaced  the  common-law  relation,  which 
otherwise  might  have  existed  between  them. 

The  order  of  time  in  which  the  business  was  actually  transacted  can- 
not be  allowed  to  affect  the  rights  of  the  parties.  If  H.  B.  Claflin 
&  Co.  were  originally  authorized  to  ship  on  bills  of  lading  limiting 
the  common-law  liability  of  the  defendants,  the  fact  that  receipts 
were  taken  in  one  stage  of  the  business,  intended  by  neither  party 
as  completing  their  dealing  or  contract,  did  not  exhaust  the  authority. 
It  was  never  so  intended  and  cannot  have  that  effect.  The  acts  of  the 
parties  must  have  operation  as  they  were  intended  by  the  parties  when 
they  were  done.  The  bills  of  lading  excepted  the  risk  of  fire,  and  as 
it  was  by  that  danger  that  the  property  in  question  was  destroyed,  the 
defendants  are  free  from  liability,  at  least  unless  the  loss  was  due  to 
their  negligence  or  fault.    The  only  suggestion  of  fault  is  that  the  cars 


Ch.  4)  LIMITATION    OF   LIABILITY.  425 

containing  these  packages  were  unloaded  on  Sunday  in  Chicago.  The 
case  does  not  inform  us  that  by  the  law  of  Illinois,  where  the  loss 
happened,  unloading  cars  on  Sunday  was  unlawful,  and  we  have  no 
means  of  knowing  such  to  be  the  fact,  in  respect  to  the  laws  of  that 
state.    The  common  law,  at  least,  teaches  no  such  doctrine. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  costs 
to  abide  the  event. ^^ 


LOUISVILLE  &  N.  R.  CO.  v.  MEYER. 

(Supreme  Court  of  Alabama,  1885.     78  Ala.  597.) 

Stone,  C.  J.^**  *  *  *  The  facts  of  this  case  are  substantially 
as  follows :  Meyer,  the  consignor,  delivered  the  goods  to  the  freight 
agent  of  the  defendant  company,  at  Cullman,  one  of  its  shipping  sta- 
tions. They  were  directed,  or  consigned,  to  Bluffton,  in  Indiana,  and 
Meyer  proposed  to  prepay  freight  for  the  entire  route.  The  agent 
was  not  able  to  tell  him  the  rate,  but  accepted  as  a  deposit  a  sufficient 
sum  of  money  to  pay  the  freight  when  the  rate  should  be  ascertained. 
He  gave  him  no  bill  of  lading,  but  filled  up  one  of  the  printed  forms, 
making  it  complete  except  the  freight  rate;  but  it  was  not  then  de- 
livered to  Meyer.  The  freight  agent  testified,  that  "the  bill  of  lading 
was  open  before  plaintiff  at  the  time  [the  time  it  was  filled  up],  and 
he  could  have  known  the  contents,  if  he  had  desired ;"  "could  not  say 
plaintiff  read  the  paper."  Its  contents  were  not  explained  to  him. 
On  the  next  day,  the  agent,  having  learned  the  rate,  inserted  it  in 
the  bill  of  lading,  which  he  forwarded,  together  with  the  surplus  of 
money,  to  Meyer,  at  Bluffton,  Ind.  The  testimony  tended  to  show 
the  box  of  goods  was  safely  transported  to  a  point  beyond  the  defend- 
ant railroad's  terminus,  and  that,  if  lost,  it  must  have  been  after  it 
had  left  defendant's  personal  custody. 

One  clause  in  the  bill  of  lading  reads  as  follows :  "It  is  further  stip- 
ulated and  agreed  that  in  case  of  any  loss,  detriment,  or  damage 
done  to,  or  sustained  by  any  of  the  property  herein  receipted  for,  dur- 
ing such  transportation,  whereby  any  legal  liability  or  responsibility 

18  Ace.  Germania  Fire  Ins.  Co.  v.  Memphis,  etc.,  Co.,  72  N.  Y.  90.  20  Am. 
Rep.  113  (1878);  Phoenix  Ins.  Co.  v.  Erie  Co..  117  U.  S.  312,  0  Sup!  Ct.  1176, 
29  L.  Ed.  873  (188G);  Ft.  Worth  Co.  v.  Wrislit.  24  Tex.  Civ.  App.  291,  58  S. 
W.  846  (190O);  Fittsburg,  etc.,  Co.  v.  Barrett.  36  Ohio  St.  448  (1881),  goods 
destroyed  before  bill  of  lading  issued;  Curran  v.  ]Midlaud,  etc.,  Co.,  [1896] 
2  Irish,  183,  goods  destroyed  before  bill  of  lading  issued. 

Where  terms  of  carriage  have  been  agreed,  and  the  carrier  has  received 
the  goods,  the  shipper's  subsequent  acceptance  of  a  bill  of  lading  does  not,  of 
itself,  bind  him  to  unknown  terms  which  vary  the  agreement.  The  Arctic 
Bird  (D.  C.)  109  Fed.  167  (1901) ;  Gaines  v.  Union,  etc.,  Co.,  28  Ohio  St.  418, 
443  (1876).  But  the  fact  that  a  bill  of  lading  was  accepted  may  be  evidence 
that  a  prior  agreement  was  not  intended  to  be  a  complete  and  final  contract 
of  carriage.  Germania  Fire  Ins.  Co.  v.  Memphis,  etc.,  Co.,  72  N.  Y.  90,  28 
Am.  Rep.  113  (1878). 

19  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


42G  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIEU.  (Part  4 

shall  or  may  be  incurred,  that  company  alone  shall  be  held  answerable 
therefor,  in  whose  actual  custody  the  same  may  be  at  the  time  of  the 
happening-  of  such  loss,  detriment,  or  damage."  It  is  contended  that 
Meyer  could  and  should  have  read  the  bill  of  lading  when  it  was 
being  filled  up,  and  that  therefore  he  must  be  charged  with  a  knowledge 
of  its  terms,  and  held  to  have  acquiesced  in  them.  On  this  theory, 
several  charges  were  asked  and  refused.  We  think  this  position 
untenable.  Possibly,  if  contemporaneously  with  the  delivery  of  the 
goods  to  the  railroad  he  had  received  the  bill  of  lading  containing 
such  stipulation,  he  would  be  conclusively  presumed  to  have  read  it, 
and  to  have  acquiesced  in  it.  Goetter  v.  Pickett,  61  Ala.  387 ;  Daw- 
son V.  Burrus,  73  Ala.  111.  And  this  would  have  been  no  hardship, 
for  he  would  then  have  had  it  in  his  power  to  reject  the  terms.  Fail- 
ing to  read  the  contract  he  was  accepting,  might  be  fairly  interpreted 
as  an  expression  of  full  confidence,  and  an  agreement  to  accept  the 
terms  they  would  offer.  That  is  not  this  case.  The  railroad  com- 
pany, through  its  agent,  agreed  to  accept  and  did  accept  the  freight, 
knowing  it  was  consigned  to  a  point  beyond  its  terminus.  It  agreed 
to  accept,  and  did  accept,  payment  of  freight  charges  for  the  entire 
route.  These,  without  more,  bound  the  railroad  company,  as  a  com- 
mon carrier,  to  deliver  the  freight  at  the  point  of  destination.  That 
liability  could  have  been  limited  by  special  contract — stipulated  terms 
acquiesced  in  by  the  shipper.  There  is  nothing  in  this  record  to  show 
that  Meyer  was  informed  of  any  proposed  limitation  of  the  carrier's 
accustomed  liability,  nor  is  anything  shown  which  cast  on  him  the  duty 
of  informing  himself.  The  charges  asked  were  properly  refused. 
Affirmed.-" 


THE  DELAWARE. 

(Supreme  Court  of  the  United  States,  1871.     14  Wall.  .'79.  20  L.  Ed.  779.) 

Appeal  from  the  Circuit  Court  for  the  District  of  California,  the 
case  being  thus : 

The  Oregon  Iron  Company,  on  the  8th  day  of  May,  1868,  shipped 
on  board  the  bark  Delaware,  then  at  Portland,  Oregon,  76  tons  of 
pig  iron,  to  be  carried  to  San  Francisco,  at  a  freight  of  $4.50  a  ton. 
The  bill  of  lading  was  in  these  words  : 

"Shipped,  in  good  order  and  condition,  by  Oregon  Iron  Company, 
on  board  the  good  bark  Delaware,  Shillaber,  master,  now  lying  in  the 
port  of  Portland,  and  bound  to  San  Francisco,  to  say  seventy-five 
tons  pig  iron,  more  or  less  (contents,  quality,  and  weight  unknown), 
being  marked  as  in  the  margin,  and  are  to  be  delivered  in  like  good 
order  and  condition  at  the  aforesaid  port  of  San  Francisco,  at  ship's 

2  0  Ace.  Mich.  Cent.  R.  Co.  v.  Boyd,  91  III.  268  (1878) ;  Merchants'  Des.  Tr. 
Co.  V.  Furthmann,  149  111.  66,  36  N.  E.  624,  41  Am.  St.  Rep.  265  (1893);  111. 
Cent.  R.  Co.  V.  Craig,  102  Tenn.  298,  52  S.  W.  164  (1899). 


Ch.  4)  LIMITATION    OF   LIABILITY.  427 

tackles    (the  dangers  of  the  seas,  fire,  and  colhsion   excepted)   unto 

,  or  assigns,  he  or  they  paying  freight  for  the  said  goods  in 

United  States  gold  coin  (before  delivery,  if  required)  as  per  margin, 
with  5  per  cent,  primage  and  average  accustomed. 

"In  witness  whereof  the  master  or  agent  of  said  vessel  hath  affirmed 
to  three  bills  of  lading,  all  of  this  tenor  and  date;  one  of  which  being 
accomplished,  the  others  to  stand  void.  Vessel  not  accountable  for 
breakage,  leakage,  or  rust. 

"Portland,  ^fay  8th,  1868. 

"C.  E.  Shillaber,  for  the  Captain." 

The  iron  was  not  delivered  at  San  Francisco;  and  on  a  libel  filed 
by  the  Iron  Company,  the  defense  set  up  was  that  by  a  verbal  agree- 
ment made  between  the  Iron  Company  and  the  master  of  the  ship 
before  the  shipment  or  the  signing  of  the  bill  of  lading,  the  iron 
was  stowed  on  deck,  and  that  the  whole  of  it,  with  the  exception  of 
6  tons  and  90  pounds,  had  been  jettisoned  in  a  storm. 

On  the  trial,  the  owners  of  the  vessel  offered  proof  of  this  parol 
agreement.  The  libelants  objected,  and  the  court  excluded  the  evi- 
dence on  the  ground  that  parol  proof  was  inadmissible  to  vary  the 
bill  of  lading;  and  decreed  in  favor  of  the  libelants  for  the  iron  that 
was  thrown  overboard.  On  appeal  the  case  was  disposed  of  in  the 
same  way  in  the  Circuit  Court.  It  was  now  here ;  the  question  being, 
as  in  the  two  courts  below,  whether  in  a  suit  upon  a  bill  of  lading  like 
the  one  here,  for  nondelivery  of  goods  stowed  on  deck,  and  jetti- 
soned at  sea,  it  is  competent,  in  the  absence  of  a  custom  to  stow  such 
goods  on  deck,  to  prove  by  parol  a  verbal  agreement  for  such  stowage. 

5|C  >ic  * 

Clifford,  J.-^  *  *  *  Goods,  though  lost  by  perils  of  the  sea,  if 
they  were  stowed  on  deck  without  the  consent  of  the  shipper,  are  not 
regarded  as  goods  lost  by  the  act  of  God  within  the  meaning  of  the 
maritime  law.  nor  are  such  losses  regarded  as  losses  by  perils  of  the 
sea  which  will  excuse  the  carrier  from  delivering  the  goods  shipped 
to  the  consignee  unless  it  appears  that  the  manner  in  which  the  goods 
were  stowed  is  sanctioned  by  commercial  usage,  or  unless  it  affirma- 
tively appears  that  the  manner  of  stowage  did  not,  in  any  degree,  con- 
tribute to  the  disaster ;  that  the  loss  happened  without  any  fault  or  neg- 
ligence on  the  part  of  the  carrier,  and  that  it  could  not  have  been  pre- 
vented by  human  skill  and  prudence,  even  if  the  goods  had  been  stowed 
under  deck,  as  required  by  the  general  rules  of  the  maritime  law. 
Lawrence  et  al.  v.  Minturn,  17  How.  114,  15  L.  Ed.  -58 ;  The  Peytona, 
2  Curt.  23.  Fed.  Cas.  No.  11,058. 

Enough  appears  in  the  record  to  show  that  all  the  iron  not  deliv- 
ered to  the  consignees  was  stowed  on  deck,  and  there  is  no  proof  in 
the  case  to  show  that  the  usage  of  the  trade  sanctioned  such  a  stowage 
in  this  case,  or  that  the  manner  in  which  it  was  stowed  did  not  con- 

21  Parts  of  the  statement  of  facts  aud  of  the  opinion  are  omitted. 


428  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

tribute  both  to  the  disaster  and  to  the  loss  of  the  goods.  Gould  v. 
Oliver,  4  Bing.  N.  C.  142 ;  Story  on  Bailment,  §  531.  *  *  *  Even 
without  any  further  explanation  it  is  obvious  that  the  only  question 
of  any  importance  in  the  case  is  whether  the  evidence  offered  to  show 
that  the  iron  in  question  was  stowed  on  deck  with  the  consent  of  the 
shippers  was  or  was  not  properly  rejected,  as  it  is  clear  if  it  was,  that 
the  decree  must  be  affirmed ;  and  it  is  equally  clear,  if  it  should  have 
been  admitted,  that  the  decree  must  be  reversed.  Angell  on  Carriers, 
§  212;  Redfield  on  Carriers,  §§  247  to  269;  The  St.  Cloud,  Brown 
&  Lushington,  Adm.  4. 

Different  definitions  of  the  commercial  instrument,  called  the  bill 
of  lading,  have  been  given  by  different  courts  and  jurists,  but  the 
correct  one  appears  to  be  that  it  is  a  vs^ritten  acknowledgment,  signed 
by  the  master,  that  he  has  received  the  goods  therein  described  from 
the  shipper,  to  be  transported  on  the  terms  therein  expressed,  to  the 
described  place  of  destination,  and  there  to  be  delivered  to  the  con- 
signee or  parties  therein  designated.  Abbott  on  Shipping  (Tth  Am. 
Ed.)  323 ;  O'Brien  v.  Gilchrist,  34  Me.  558,  56  Am.  Dec.  676 ;  1  Par- 
sons on  Shipping,  186 ;  Alaclachlan  on  Shipping,  338 ;  Emerigon  on 
Ins.  251.  Regularly  the  goods  ought  to  be  on  board  before  the  bill  of 
lading  is  signed ;  but  if  the  bill  of  lading,  through  inadvertence  or 
otherwise,  is  signed  before  the  goods  are  actually  shipped,  as  if  they 
are  received  on  the  wharf  or  sent  to  the  warehouse  of  the  carrier,  or 
are  delivered  into  the  custody  of  the  master  or  other  agent  of  the 
owner  or  charterer  of  the  vessel,  and  are  afterwards  placed  on  board, 
as  and  for  the  goods  embraced  in  the  bill  of  lading,  it  is  clear  that  the 
bill  of  lading  will  operate  on  those  goods  as  between  the  shipper  and 
the  carrier  by  way  of  relation  and  estoppel,  and  that  the  rights  and 
obligations  of  all  concerned  are  the  same  as  if  the  goods  had  been  ac- 
tually shipped  before  the  bill  of  lading  had  been  signed.  Rowley 
V.  Bigelow,  12  Pick.  (Mass.)  307,  23  Am.  Dec.  607;  The  Eddy,  5 
Wall.  495,  18  L.  Ed.  486. 

Such  an  instrument  is  twofold  in  its  character;  that  is,  it  is  a  re- 
ceipt as  to  the  quantity  and  description  of  the  goods  shipped,  and  a 
contract  to  transport  and  deliver  the  goods  to  the  consignee  or  other 
person  therein  designated,  and  upon  the  terms  specified  in  the  same 
instrument.  Maclachlan  on  Shipping,  338,  339 ;  Smith's  Mercantile 
Law  (6th  Ed.)  308.  Beyond  all  doubt  a  bill  of  lading,  in  the  usual 
■form,  is  a  receipt  for  the  quantity  of  goods  shipped  and  a  promise  to 
transport  and  deliver  the  same  as  therein  stipulated.  Bates  v. 
Todd,  1  Moody  &  Robinson,  106;  Berkley  v.  Watling,  7  Adolphus 
&  ElHs,  29  ;  Wayland  v.  Mosely,  5  Ala.  430,  39  Am.  Dec.  335  ;  Brown 
V.  Byrne,  3  Ellis  &  Blackburne,  714 ;  Blaikie  v.  Stembridge,  6  C.  B. 
(N.  S.)  907.  Receipts  may  be  either  a  mere  acknowledgment  of  pay- 
ment or  delivery,  or  they  may  also  contain  a  contract  to  do  something 
in  relation  to  the  thing  delivered.  In  the  former  case,  and  so  far  as 
the   receipt  goes   only  to   acknowledge   payment  or   delivery,   it,  the 


Ch.  4)  LIMITATION    OF   LIABILITY.  429 

receipt,  is  merely  prima  facie  evidence  of  the  fact,  and  not  conclusive, 
and  therefore  the  fact  which  it  recites  may  be  contradicted  by  oral 
testimony,  but  in  so  far  as  it  is  evidence  of  a  contract  between  the 
parties  it  stands  on  the  footing  of  all  other  contracts  in  writing,  and 
cannot  be  contradicted  or  varied  by  parol  evidence.  1  Greenleaf  on 
Evidence  (12th  Ed.)  §  305;  Bradley  v.  Dunipace,  1  Hurlstone  &  Colt, 
525. 

Text-writers  mention  the  bill  of  lading  as  an  example  of  an  instru- 
ment which  partakes  of  a  twofold  character,  and  such  commentators 
agree  that  the  instrument  may,  as  betv/een  carrier  and  shipper,  be  con- 
tradicted and  explained  in  its  recital  that  the  goods  were  in  good  order 
and  well  conditioned,  by  showing  that  their  internal  state  and  con- 
dition was  bad,  or  not  such  as  is  represented  in  the  instrument,  and 
in  like  manner,  in  respect  to  any  other  fact  which  it  erroneously  re- 
cites, but  in  all  other  respects  it  is  to  be  treated  like  other  written  con- 
tracts. Hastings  v.  Pepper,  11  Pick.  (Mass.)  42;  Clark  v.  Barn- 
well et  al.,  12  How.  272,  13  L.  Ed.  985;  Ellis  v.  Willard,  9  N.  Y.  529 ; 
Babcock  v.  May,  4  Ohio,  346;  Adams  v.  Packet  Co.,  5  C.  B.  (N.  S.) 
492;    Sack  v.  Ford,  13  C.  B.  (N.  S.)  100.    *     *     * 

Subsequent  oral  agreements  in  respect  to  a  prior  written  agreement, 
not  falling  within  a  statute  of  frauds,  may  have  the  effect  to  enlarge 
the  time  of  performance,  or  may  vary  any  other  of  its  terms,  or,  if 
founded  upon  a  new  consideration,  may  waive  and  discharge  it  al- 
together. Emerson  v.  Slater,  22  How.  41,  16  L.  Ed.  360;  Gross  v. 
Nugent,  5  Barnewall  &  Adolphus,  65 ;  Nelson  v.  Boynton,  3  Mete. 
(Mass.)  402,  37  Am.  Dec.  148;  1  Greenleaf  on  Evidence,  303;  Har- 
vey V,  Grabham,  5  Adolphus  &  Ellis,  61.  Verbal  agreements,  how- 
ever, between  the  parties  to  a  written  contract,  made  before  or  at 
the  time  of  the  execution  of  the  contract,  are  in  general  inadmissible 
to  contradict  or  vary  its  terms  or  to  affect  its  construction,  as  all 
such  verbal  agreements  are  considered  as  merged  in  the  written  con- 
tract. Ruse  V.  Insurance  Co.,  23  N.  Y.  519;  Wheelton  v.  Hardisty, 
8  Ellis  &  Blackburn,  296 ;  2  Smith's  Leading  Cases,  758 ;  Angell  on 
Carriers  (4th  Ed.)  §  229. 

Apply  that  rule  to  the  case  before  the  court  and  it  is  clear  that  the 
ruling  of  the  court  below  was  correct,  as  all  the  evidence  oft'ered  con- 
sisted of  conversations  between  the  shippers  and  the  master  before  or 
at  the  time  the  bill  of  lading  was  executed.  Unless  the  bill  of  lading 
contains  a  special  stipulation  to  that  effect,  the  master  is  not  author- 
ized to  stow  the  goods  sent  on  board  as  cargo  on  deck,  as  when  he 
signs  a  bill  of  lading,  if  in  common  form,  he  contracts  to  convey 
the  merchandise  safely,  in  the  usual  mode  of  conveyance,  which, 
in  the  absence  of  proof  of  a  contrary  usage  in  the  particular  trade, 
requires  that  the  goods  shall  be  safely  stowed  under  deck ;  and  when 
the  master  departs  from  that  rule  and  stows  them  on  deck,  he  cannot 
exempt  either  himself  or  the  vessel  from  liability,  in  case  of  loss,  by 
virtue  of  the  exception,  of  dangers  of  the  seas,  unless  the  dangers 


430  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

were  such  as  would  have  occasioned  the  loss  even  if  the  goods  had 
been  stowed  as  required  by  the  contract  of  affreightment.  The  Re- 
becca, Ware,  210;  Dodge  v.  Bartol,  5  Greenl.  (Me.)  286,  17  Am.  Dec. 
233;  Wolcott  v.  Insurance  Co.,  4  Pick.  (Mass.)  429;  Taunton  Cooper 
Co.  v.  Insurance  Co.,  22  Pick.  (Mass.)  108;  Adams  v.  Ins.  Co.,  Id. 
163.     *     *     * 

Remarks,  it  must  be  admitted,  are  found  in  the  opinion  of  the  court, 
in  the  case  of  Vernard  v.  Hudson,  3  Sumn.  406,  Fed.  Cas.  No.  16,921, 
and  also  in  the  case  of  Sayward  v.  Stevens  (1854)  3  Gray  (Mass.)  97, 
which  favor  the  views  of  the  appellant,  but  the  weight  of  authority 
and  all  the  analogies  of  the  rules  of  evidence  support  the  conclusion 
of  the  court  below,  and  the  court  here  adopts  that  conclusion  as  the 
correct  rule  of  law,  subject  to  the  qualifications  herein  expressed. 

Decree  affirmed. ^^ 


RODOCANACHI,  SONS  &  CO.  v.  MILBURN  BROS. 

(Coiu-t  of  Appeal,  1886.     18  Q.  B.  Div.  67.) 

•  Action  for  nondelivery  of  a  cargo  of  cotton  seed  shipped  on  defend- 
ants' vessel  and  lost  by  the  negligence  of  her  master.  / 

Lord  EsHER,  M.  R.^^  In  this  case  the  plaintiffs  had  chartered  the 
defendants'  ship,  and  by  the  terms  of  the  charter  party  the  captain 
was  to  sign  a  bill  of  lading  for  the  cargo,  which  he  accordingly  did. 
The  terms  of  the  charter  party  and  those  of  the  bill  of  lading  are 
not  identical,  there  being  no  exception  in  the  charter  party  of  liability 
for  loss  occasioned  by  the  act,  neglect,  or  default  of  the  master  or 
mariners,  whereas  there  is  such  an  exception  in  the  bill  of  lading. 

The  plaintiffs  contend  that  they  are  entitled  to  sue  on  the  charter 
party,  and  to  rely  on  the  contract  therein  expressed;  and  therefore 
that  they  are  entitled  to  recover  notwithstanding  the  exception  in  the 
bill  of  lading.  The  defendants  admit  that,  if  the  charter  party  had 
stood  alone,  they  could  not  have  disputed  their  liability ;  but  they  say 
that  the  charter  party  contained  clauses  by  which  "the  master  was  to 
sign  bill  of  lading  at  any  rate  of  freight  and  as  customary  at  port  of 
lading,"  and  by  Avhich  the  liability  of  the  charterers  was  to  cease 
when  the  goods  were  shipped.  Reading  those  clauses  together  they 
say  that  the  proper  conclusion  is  that  the  liability,  which  they,  as  the 
shipowners,  would  have  incurred  under  the  charter  party,  if  it  had 
stood  alone,  has  been  altered  by  the  bill  of  lading  which  the  plaintiffs 
must  be  taken  to  have  presented  for  signature,  and  which  was  accord- 

2  2  Ace.  Barber  v.  Brace,  3  Conn.  9,  8  Am.  Dec.  149  (1819);  Creery  v.  Holly, 
14  Wend.  (N.  Y.)  26  (1835)  ;  The  Wellington,  1  Biss.  279,  Fed.  Cas.  No.  17,384 
(1859).  And  see  Carver,  Carriage  by  Sea,  §  56;  Ledue  v.  Ward,  ante,  p.  52. 
note. 

2  3  Tlie  statement  of  facts  has  been  rewritten.  Parts  of  the  opinion  are 
omitted. 


Ch.  4)  LIMITATION    OF   LIABILITY.  431 

ingly  signed,  and  that  the  new  Hability  is  governed  by  the  bill  of  lad- 

But,  assuming  that  under  this  clause  of  the  charter  party  the  mas- 
ter was  to  sign  bills  of  lading  in  the  form  customary  at  the  port  of 
lading,  and  that  the  form  of  this  bill  of  lading  was  such  customary 
form,  so  that  only  a  bill  of  lading  in  this  form  could  be  signed  in 
accordance  with  the  charter  party,  then  the  result  would  be  that  the 
bill  of  lading  to  be  signed  under  the  charter  party  would  be  one  the 
stipulations  of  which  were  in  part  not  the  same  as  those  of  the  charter 
party.  What  in  that  case  is  the  rule  as  to  the  construction  of  the  two 
documents?  In  my  opinion,  even  so,  unless  there  be  an  express  pro- 
vision in  the  documents  to  the  contrary,  the  proper  construction  of 
the  two  documents  taken  together  is  that  as  between  the  shipowner 
and  the  charterer  the  bill  of  lading,  although  inconsistent  with  certain 
parts  of  the  charter,  is  to  be  taken  only  as  an  acknowledgment  of  the 
receipt  of  the  goods.  With  regard  to  the  effect  of  these  documents  as 
between  charterers  and  shipowners,  I  adopt  fully  what  was  said  by 
Lord  Bramwell  in  Sewell  v.  Burdick,  10  App.  Cas.  105.  This  doc- 
trine gives  effect  to  both  instruments,  because,  although  as  between 
the  shipowners  and  the  charterers  the  bill  of  lading  is  only  a  receipt 
for  the  goods,  it  will  be  the  contract  upon  which  the  holder  of  the  bill 
of  lading  to  whom  it  is  indorsed  must  rely  as  between  himself  and  the 
shipowner.  *  *  *  On  these  grounds  I  think  that  the  defendants' 
appeal  fails.     *     *     *  24 

Judgment  accordingly. 


WEHMANN  V.  MIXNEAPOLIS,  ST.  P.  &  S.  S.  ^I.  RY.  CO. 

(Supreme  Court  of  Minnesota,  1894.     58  Minn.  22,  59  N.  W.  54G.) 

Action  for  the  loss  of  flour  shipped  by  plaintiff  over  defendant's 
railroad,  to  be  carried  to  Gladstone,  Wis.,  and  there  delivered  to  a 
connecting  carrier  for  further  transportation.  The  bill  of  lading 
contained  an  exemption  for  loss  after  arrival  at  the  warehouse  at 
Gladstone.  The  flour  was  burned  without  defendant's  fault  while  in 
warehouse  at  Gladstone  awaiting  delivery.  The  trial  judge  directed 
a  verdict  for  plaintiff.  Defendant  appeals  from  an  order  denying  a 
new  trial. 

2  4  Lindley  and  Lopes.  L.  .TJ..  delivered  concurring  opinions.  The  latter 
said:  "I  believe  the  law  to  he  that,  when  there  is  a  charter  party,  as  be- 
tween charterers  and  shipowners,  the  bill  of  lading  operates  prima  facie 
as  a  mere  receipt  for  the  goods,  and  a  document  of  title  which  may  be  ne- 
gotiated, and  by  which  the  property  is  transferred,  but  does  not  operate  as 
a  new  contract,  or  alter  the  contract  contained  in  the  charter  party." 

Compare  Park  v.  Preston,  108  N.  Y.  434,  15  N.  E.  705  (1887),  and  Donovan 
V  Standard  Oil  Co.,  155  N.  Y.  112,  49  N.  E.  G78  (1898).  See,  also,  The  Arctic 
Bird  (D.  C.)  109  Fed.  167  (1901);  The  Caledonia  (C.  C.)  43  Fed.  GSl  (1S90); 
Id.,  157  U.  S.  124,  15  Sup.  Ct.  537,  39  L.  Ed.  644  (1895). 


432  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

GiLFiLLAN,  C.  J.2'  *  *  *  /^s  thg  Aquj.  ^yas  not  delivered  to 
the  transportation  company,  nor  notice  of  its  arrival  given  to  its 
agent,  so  that  its  responsibility  as  carrier  might  attach,  the  responsi- 
bility of  defendant  as  carrier  had  not  ended  at  the  time  of  the  fire, 
unless,  by  virtue  of  a  clause  in  the  bill  of  lading  in  these  words :  "It 
being  further  expressly  agreed  that  this  company  assumes  no  liability, 
and  it  is  not  to  be  held  responsible  as  common  carriers,  for  any  loss 
or  injury  to  said  property  after  its  arrival  at  its  warehouse  aforesaid, 
or  for  any  loss  or  damages  thereto,  or  any  delay  in  transportation  or 
delivery  thereof,  by  any  connecting  or  succeeding  carrier." 

Conceding  that,  because  this  was  a  shipment  for  carriage  beyond 
the  limits  of  the  state,  the  statutes  of  the  state  do  not  apply,  and  that 
the  validity  of  the  clause  is  to  be  determined  by  the  principles  of  the 
common  law,  then  the  question  arises,  was  there  a  consideration  to 
support  it?  Such  a  clause,  to  be  of  force,  must  stand  as  a  contract 
between  the  shipper  and  the  carrier,  and,  as  in  the  case  of  all  con- 
tracts, there  must  be  a  consideration  for  it.  One  exercising  the  em- 
ployment of  a  common  carrier  of  goods  is  bound  to  receive  and  carry 
such  (within  the  class  of  goods  that  he  carries)  as  are  tendered  to 
him  for  the  purposes,  and,  in  the  absence  of  special  contract,  to  carry 
them  with  the  full  common-law  liability  of  a  common  carrier.  His 
receipt  of  and  undertaking  to  carry  them,  being  a  duty  imposed  on 
him  by  law,  is  not  a  consideration  to  support  such  special  contract. 
There  must  be  some  other.  That  is  generally  furnished  by  some  con- 
cession in  rates.  And,  where  the  agreement  is  set  forth  in  the  con- 
tract for  carriage,  it  would  probably  be  presumed  that,  in  a  case 
where  parties  could  make  any,  there  was  some  such  concession  as  a 
consideration  for  relieving  the  carrier  of  part  of  his  common-law  lia- 
bility. 

But  in  such  a  case  as  this,  any  abatement  of  rates  is  forbidden  by 
act  of  congress,  and  therefore  none  can  be  presumed.  The  tariff  of 
joint  rates  in  the  case  makes  no  mention  of  any  limitation  of  liability. 
They  are  to  be  taken,  therefore,  as  rates  established  for  carriage  with 
full  common  carrier's  liability;  and  under  the  act  of  congress  no 
abatement  could  be  made  to  support  a  contract  for  a  limited  liability. 
The  clause  is  void  for  want  of  a  consideration  to  support  it.  Order 
affirmed.^® 

2  5  The  statement  of  facts  has  been  rewritten,  and  part  of  the  opinion 
omitted. 

2  0  Ace.  Selden,  J.,  in  Bissell  v.  N.  T.  C.  R.  Co.,  25  N.  Y.  442,  449,  82  Am. 
Dec.  369  (1862).  passenger  ticket;  Railway  Co.  v.  Gilbert,  88  Tenn.  4,30,  12 
S.  W.  1018  (1890) ;  Bait.  &  O.  S.  W.  Ry.  Co.  v.  Crawford,  65  111.  App.  113 
(1896);  Schaller  v.  Chicago  &  N.  W.  Ry.  Co.,  97  Wis.  31,  71  N.  W.  1042  (1897), 
semble;  Richardson  v.  Chic.  &  A.  R.  Co.,  149  Mo.  311,  50  S.  W.  782  (1899), 
semble ;  111.  Cent.  R.  Oo.  v.  Lancaster  Ins.  Co.,  79  Miss.  114,  30  South.  43 
(1901);  Parker  v,  Atl.,  etc.,  R.  Co.,  133  N.  C.  335.  45  S.  E.  658,  63  L.  R.  A. 
827  (1903);  St.  Louis,  etc.,  R.  Co.  v.  Coolidge,  73  Ark.  112,  83  S.  W.  333. 
67  L.  R.  A.  555,  108  Am.  St.  Rep.  21  (1904) ;  Evansville,  etc.,  R.  Co.  v.  Keve- 
kordes  (Ind.  App.)  69  N.  E.  1022  (1904). 


Ch.  4)  LIMITATION    OF   LIABILITY.  433 


CAU  V.  TEXAS  &  p.  RY.  CO. 

{Supreme  Court  of  the  United  States,  1904.     194  U.  S.  427,  24  Sup.  Ct.  GG3, 

48  L.   Ed.   1053.) 

Action  for  loss  of  cotton,  by  fire  while  in  defendant  railroad's  pos- 
session for  carriage  to  New  Orleans.  The  bills  of  lading  excepted 
loss  by  fire.  The  shipper  testified  that  he  inquired  of  the  railroad  the 
rate  for  cotton,  knowing  that  all  the  railroads  had  the  same  rate  and 
knowing  that  it  was  against  the  law  for  them  to  give  any  other  rate, 
and  that  he  shipped  the  cotton  at  the  rate  named,  taking  bills  of  lad- 
ing without  knowing  that  they  excepted  loss  by  fire,  and  without 
anything  said  as  to  shipment  at  any  other  rate  or  on  other  terms.  The 
court  directed  a  verdict  for  defendant.  Error  to  review  a  judgment 
affirming  a  judgment  entered  on  the  verdict. 

McKexna,  J.^^  It  is  well  settled  that  the  carrier  may  limit  his  com- 
mon-law liability.  York  Mfg.  Co.  v.  Illinois  C.  R.  Co..  3  Wall.  107, 
18  L.  Ed.  170.  But  it  is  urged  that  the  contract  must  be  upon  a  con- 
sideration other  than  the  mere  transportation  of  the  property,  and  an 
"option  and  opportunity  must  be  given  to  the  shipper  to  select  under 
which,  the  common-law  or  limited  liability,  he  will  ship  his  goods."  -^ 

If  this  means  that  a  carrier  must  take  no  advantage  of  the  shipper, 
or  practice  no  deceit  upon  him,  we  agree.  If  it  means  that  the  alterna- 
tive must  be  actually  presented  to  the  shipper  by  the  carrier,  we  cannot 
agree.  From  the  standpoint  of  the  law  the  relation  between  carrier 
and  shipper  is  simple.  Primarily  the  carrier's  responsibility  is  that 
expressed  in  the  common  law,  and  the  shipper  may  insist  upon  the 
responsibility.  But  he  may  consent  to  a  limitation  of  it,  and  this  is  ' 
the  "option  and  opportunity"  which  is  offered  to  him.  What  other 
can  be  necessary?  There  can  be  no  limitation  of  liability,  without 
the  assent  of  the  shipper  (Xew  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants' Bank,  6  How.  344,  12  L.  Ed.  46-5),  and  there  can  be  no  stip- 
ulation for  any  exemption  by  a  carrier  which  is  not  just  and  reasonable 
in  the  eye  of  the  law  (Railroad  Co.  v.  Lockwood,  17  Wall.  357,  21 

27  The  statement  of  facts  has  been  rewritten,  and  part  of  the  opinion 
omitted. 

as  "Moreover,  thouj^h  it  were  conceded  that  this  paper  was  in  fact  issued 
before  the  transportation  of  the  goods,  as  a  bill  of  ladinfj  therefor,  it  would 
nevertheless  be  invalid  in  so  far  as  it  provides  for  limited  liability.  *  *  » 
The  asent  who  issued  this  paper,  while  testifying  before  the  jury  on  behalf 
of  the  company,  said  *  *  *  that  'he  would  not  have  shipped  the  fountain 
for  the  i)laintiff  if  he  had  refused  to  accept  a  bill  of  lading  in  that  form,  and 
in  the  terms  of  that  one.'  It  is  well  settled  that  a  common  carrier  may,  by  a 
stipulation  in  its  bill  of  lading,  limit  its  common-law  liability  for  loss  or  dam- 
age of  freight  not  caused  by  its  own  negligence.  But  this  cannot  be  validly 
done  unless  the  carrier  at  the  time  holds  itself  in  readiness  to  transport  the 
freight  with  or  without  such  limitation,  and  allows  the  shipper  a  reasonable 
and  bona  fide  alternative  between  the  two  modes  of  shipment.''  Caldwell, 
J.,  in  111.  Cent.  R.  Co.  v.  Craig,  102  Teun.  298,  52  S.  W.  1G4  (1899). 
Green  Carr. — 2S 


434  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

L.  Ed.  627  [post,  p.  Uo]  ;  Bank  of  Kentucky  v.  Adams,  93  U.  S.  174, 
23L.  Ed.  8v2). 

Inside  of  that  limitation,  the  carrier  may  modify  his  responsibility 
by  special  contract  with  a  shipper.  A  bill  of  lading  limiting  liability 
constitutes  such  a  contract,  and  knowledge  of  the  contents  by  the 
shipper  will  be  presumed. 

2.  It  is  again  urged  that  there  was  no  independent  consideration 
for  the  exemption  expressed  in  the  bill  of  lading.  This  point  was 
made  in  York  Mfg.  Co.  v.  Illinois  C.  R.  Co.,  3  Wall.  107,  18  L.  Ed. 
170.  In  response  it  was  said:  "The  second  position  is  answered  by  the 
fact  that  there  is  no  evidence  that  a  consideration  was  not  given  for 
the  stipulation.  The  company,  probably,  had  rates  of  charges  pro- 
portioned to  the  risks  they  assumed  from  the  nature  of  the  goods 
carried,  and  the  exception  of  losses  by  fire  must  necessarily  have  af- 
fected the  compensation  demanded.  Be  this  as  it  may,  the  considera- 
tion expressed  was  sufficient  to  support  the  entire  contract  made." 

In  other  words,  the  consideration  expressed  in  the  bill  of  lading 
was  sufficient  to  support  its  stipulations.  This  effect  is  not  averted 
by  showing  that  the  defendant  had  only  one  rate.  It  was  the  rate 
also  of  all  other  roads,  and  presumably  it  was  adopted  and  offered 
to  shippers  in  view  of  the  limitation  of  the  common-law  liability  of 
the  roads.     *     *     * 

Judgment  affirmed.^® 


MENZELL  V.  CHICAGO  &  N.  W.  RY.  CO. 

(Circuit  Court,  D.   Iowa,   1870.     1   Dill.  531,   Fed.    Cas.  No.  9,429.) 

Dillon,  J.^"  *  *  *  On  the  admitted  facts  of  the  case,  conced- 
ing the  validity  of  the  special  contract  on  which  the  defendant  rests, 
and  that  it  is  binding  upon  the  plaintiff,  and  that  the  fire  was  purely 

29  To  same  effect  are  Nelson  v.  Hudson  River  R.  Co.,  48  N.  T.  408,  50G 
(1872) ;  Rubens  v.  Ludgate  Hill  S.  S.  Co.,  6.5  Hun,  62.5,  20  N.  Y.  Supp.  481 
(1892),  affirmed  143  N.  Y.  629,  37  N.  E.  825  (1894) ;  Arthur  v.  Texas,  etc.,  R. 
Co..  139  Fed.  127,  71  C.  C.  A.  391  (1905),  affirmed  on  this  point  204  U.  S.  505, 
27  Sup.  Ct.  338.  51  L.  Ed.  590  (1907);  Inman  v.  Seaboard  Air  Line  (C.  C.) 
159  Fed.  960,  968  (1908).  Many  courts,  which  regard  a  release  of  liability 
as  invalid  without  a  special  consideration,  apply  a  different  rule  to  other 
stipulations.  Hatch  v.  Minn.,  etc.,  Co.,  15  N.  D.  490,  107  N.  W.  1087  (1906). 
no  right  to  sue  unless  notice  of  claim  given  before  cattle  removed;  Freeman 
V.  Kansas,  etc.,  Ry.  Co.,  118  Mo.  App.  526,  93  S.  W.  302  (190<5).  notice  of  dam- 
age to  be  given  within  five  days;  101  Live  Stock  Co.  v.  Kansas,  etc.,  Co., 
100  Mo.  App.  674,  75  S.  W.  782  (1903),  damages  to  be  based  on  value  at  place 
of  shipment. 

A  release  recited  to  be  in  consideration  of  a  reduced  rate  has  been  held 
not  to  bind  the  shipper,  if  without  his  knowledge  the  recital  is  false.  Ward 
V.  Mo.  Pac.  Rv.  Co.,  158  Mo.  226,  58  S.  W.  28  (1900);  Ficklin  v.  Wabash  R. 
Co.,  117  Mo.  App.  221,  93  S.  W.  847  (1906).  Or  if  he  knows  its  falsitv.  Mc- 
Fadden  v.  Mo.  Pac.  Ry.  Co.,  92  Mo.  343,  4  S.  W.  689,  1  Am.  St.  Rep.  721 
(1887). 

3  0  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Ch.  4)  LIMITATION    OF   LIADILITY.  435 

accidental,  it  is  still  my  opinion,  as  it  was  on  the  trial,  that  the  plaintiff 
is  entitled  to  recover.     *     *     * 

The  language  is,  "I  hereby  release  said  company  from  any  and  all 
damage  that  may  occur  to  said  goods,  arising  from  leakage  or  de- 
cay, chafing  or  breakage,  or  (and  this  is  the  language  relied  on) 
from  any  other  cause  not  the  result  of  collision  of  trains,  or  of  cars 
being  thrown  from  the  track  while  in  transit." 

Construing  this  general  and  indefinite  language  conformably  to  the 
rules  adopted  by  courts  in  the  interpretation  of  contracts  of  this  kind, 
it  is  my  opinion  that  it  does  not  plainly  or  satisfactorily  appear  there- 
from that  the  parties  intended  thereby  to  exempt  the  company  from 
liability  for  a  total  loss  or  destruction  of  the  goods  by  fire  while  in  the 
warehouse  of  the  company  at  an  intermediate  station  on  the  line  of 
transportation;  and  therefore  this  agreement  (admitting  that  it  was 
knowingly  entered  into  by  the  plaintiff,  and  founded  upon  a  sufficient 
consideration)  does  not  relieve  the  company  from  liability  for  the  loss 
of  the  goods  by  fire,  even  though  the  fire  were  accidental,  and  without 
fault  on  the  part  of  the  company,  its  agents,  or  servants. 

Judgment  on  the  verdict.^ ^ 

31  See.  also.  Serraino  v.  Campbell,  1  Q.  B.  283,  290  (1891). 

"It  is  well  settled  that  exemptions  in  favor  of  a  common  carrier  in  bills 
of  ladinjr  are  to  be  strictly  construed  against  the  carrier,  and  that  any  doubt 
or  aml)i.siuity  therein  is  to  be  resolved  in  favor  of  the  shipper.  'And  when 
the  particular  dangers  or  risi^s  against  which  the  carrier  has  specifically 
guarded  himself  in  his  receipt  are  follov.-ed  by  more  general  and  compre- 
hensive words  of  exemption,  the  latter  are  to  be  construed  to  embrace  only 
occurrences  ejusdem  generis  with  those  previously  enumerated,  unless  there 
be  a  clear  intent  to  the  contrary.'  Hutch.  Carr.  §§  27.5,  276;  Hawkins  v. 
Railway  Co..  17  Mich.  57  [97  Am.  Dec.  179]:  The  Caledonia,  1.57  U.  S.  124, 
15  Sup.  Ct.  537  [39  L.  Ed.  ^4]."  Taft,  J.,  in  N.  K.  Fairbank  &  Co.  v.  Cincin- 
nati, etc.,  Ry..  81  Fed.  289.  26  C.  C.  A.  402  (18971.  holding  damage  caused  by 
the  breaking  of  an  axle  of  a  freight  car  not  to  be  within  the  meaning  of  the 
phrase  "accidents  to  boilers  or  machinery'"  in  a  bill  of  lading  for  carriage 
by  land  but  drawn  to  cover  carriage  by  water  also. 

An  exception  in  a  maritime  bill  of  lading  does  not  relieve  the  carrier  from 
liability  to  contribute  in  general  average  to  a  loss  of  cargo  by  sacrifice  due 
to  the  excepted  peril.  Nimick  v.  Holmes.  25  Pa.  366,  64  Am.  Dee.  710  (1855), 
fire;  Crooks  v.  Allen,  5'Q.  B.  D.  38  (1879),  "not  liable  for  loss  capable  of  be- 
ing covered  by  insurance";  Burton  v.  English.  12  Q.  B.  D.  218  (1883),  "deck 
load  at  merchant's  risk";  The  Roanoke,  59  Fed.  161,  8  C.  C.  A.  67  (1893), 
"not  liable  for  loss  arising  from,  caused  by,  or  connected  with  fire."  An  excej)- 
tion  of  "collision  even  when  caused  by  negligence  of  shipowner's  servants" 
does  not  apply  to  negligence  of  the  crew  of  another  vessel  belonging  to  the 
same  carrier,  which  brings  her  into  collision  with  the  carrying  ship.  The 
Britannic  (D.  C.)  39  Fed.  395  (1889).  An  agreement  that  the  carrier  shall 
not  be  liable  for  specified  causes  of  loss  not  mentioning  misdelivery,  nor  "for 
any  claim  whatsoever  unless  presented  within  90  days,"  does  not  apply  to  a 
claim  for  conversion  by  negligent  misdelivery.  Security  Trust  Co.  v.  Wells 
Fargo  &  Co.,  81  App.  Div.  426,  80  N.  Y.  Supp.  8.30  (1!X)3).  aflirmed  178  N.  Y. 
620.  70  N.  E.  llOf)  (1904).  See,  further.  So.  Ry.  v.  Webb.  143  Ala.  304.  39 
South.  262,  111  Am.  St.  Rep.  45  (lt)05);  Wright  v.  C,  B.  &  Q.  Ry.,  118  Mo. 
App.  392,  94  S.  W.  555  (1906);  Rosenthal  v.  Weir,  170  N.  Y.  148,  63  N.  E.  65, 
57  L.  R.  A.  527  (1902). 

A  common  carrier,  who  by  bill  of  lading  undertakes  to  deliver,  "dangers 
of  the  sea  only  excepted,"  does  not  thereby  make  himself  liable  for  loss  by 


■43G  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

MYNARD  V.  SYRACUSE.  B.  &  N.  Y.  R.  CO. 
(Court  of  Appeals  of  New  York,  1877.     71  N.  Y.  180,  27  Am.  Rep.  28.) 

Church,  C.  J.^-  The  parties  stipulated  that  the  animal  was  lost 
by  reason  of  the  negligence  of  some  of  the  employees  of  the  defend- 
ant without  the  fault  of  the  plaintiff.  The  defence  rested  solely  upon 
exemption  from  liability  contained  in  the  contract  of  shipment  by 
which,  for  the  consideration  of  a  reduced  rate,  the  plaintiff  agreed  to 
"release  and  discharge  the  said  company  from  all  claims,  demands, 
and  liabilities  of  every  kind  whatsoever  for  or  on  account  of,  or  con- 
nected with,  any  damage  or  injury  to  or  the  loss  of  said  stock,  or  any 
portion  thereof,  from  whatsoever  cause  arising." 

The  question  depends  upon  the  construction  to  be  given  to  this  con- 
tract, whether  the  exemption  "from  whatever  cause  arising,"  should 
be  taken  to  include  a  loss  accruing  by  the  negligence  of  the  defendant 
or  its  servants.  The  language  is  general  and  broad.  Taken  literally 
it  would  include  the  loss  in  question,  and  it  would  also  include  a  loss 
accruing  from  an  intentional  or  willful  act  on  the  part  of  servants.  It 
is  conceded  that  the  latter  is  not  included.  We  must  look  at  the 
language  in  connection  with  the  circumstances  and  determine  what 
was  intended,  and  whether  the  exemption  claimed  was  within  the  con- 
templation of  the  parties. 

The  defendant  was  a  common  carrier,  and  as  such  was  absolutely 
liable  for  the  safe  carriage  and  delivery  of  property  intrusted  to  its 
care,  except  for  loss  or  injury  occasioned  by  the  acts  of  God  or  public 
enemies.  The  obligations  are  imposed  by  law,  and  not  by  contract. 
A  common  carrier  is  subject  to  two  distinct  classes  of  liabilities — one 
where  he  is  liable  as  an  insurer  without  fault  on  his  part ;  the  other, 
as  an  ordinary  bailee  for  hire,  when  he  is  liable  for  default  in  not  exer- 
cising proper  care  and  diligence ;  or,  in  other  words,  for  negligence. 
General  words  from  whatever  cause  arising  may  well  be  satisfied  by 
limiting  them  to  such  extraordinary  liabilities  as  carriers  are  under 
without  fault  or  negligence  on  their  part. 

When  general  words  may  operate  without  including  the  negligence 
of  the  carrier  or  his  servants,  it  will  not  be  presumed  that  it  was  in- 
tended to  include  it.  Every  presumption  is  against  an  intention  to 
contract  for  immunity  for  not  exercising  ordinary  diligence  in  the 
transaction  of  any  business,  and  hence  the  general  rule  is  that  con- 
tracts will  not  be  so  construed,  unless  expressed  in  unequivocal  terms. 
In  New  Jersey  Steam  Navigation  Co.  v.  Merchants'  Bank,  6  How. 
344,  12  Iv.  Ed.  465,  a  contract  that  the  carriers  are  not  responsible  in 
any  event  for  loss  or  damage,  was  held  not  intended  to  exonerate 

public  enemies.     Gage  r.  Tirrell,  9  Alleu  (Mass.)  299  (1864).     So  of  a  private 
carrier.     See  U.  S.  v.  Power,  6  Mont.  271.  12  Pac.  639  (1SS7).     For  the  mean- 
ing of  "dangers  of  the  sea,"  see  Carver.  Carriage  by  Sea,  §§  84-91. 
32  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Ch.  4)  LIMITATION    OF   LIABILITY.  437 

them  from  liability  for  want  of  ordinary  care.  Nelson,  J-,  said: 
"The  language  is  general  and  broad,  and  might  very  well  comprehend 
every  description  of  risk  incident  to  the  shipment.  But  we  think  it 
would  be  going  further  than  the  intent  of  the  parties  upon  any  fair 
and  reasonable  construction  of  the  agreement,  were  we  to  regard  it 
as  stipulating  for  wilful  misconduct,  gross  negligence,  or  want  of 
ordinary  care,  either  in  the  seaworthiness  of  the  vessel,  her  proper 
equipments  and  furniture,  or  in  her  management  by  the  master  and 
hands."    This  rule  has  been  repeatedly  followed  in  this  state.   *     *     * 

So,  in  the  Steinweg  Case,  43  N.  Y.  123,  3  Am.  Rep.  673,  the  con- 
tract released  the  carrier  "from  damage  or  loss  to  any  article  from 
or  by  fire  or  explosion  of  any  kind,"  and  this  court  held  that  the  re- 
lease did  not  include  a  loss  by  fire  occasioned  by  the  negligence  of  the 
defendant;  and,  in  the  Magnin  Case,  still  more  recently  decided  by 
this  court  (56  N.  Y.  168),  the  contract  with  the  express  company  con- 
tained the  stipulation  "and,  if  the  value  of  the  property  above  de- 
scribed is  not  stated  by  the  shipper,  the  holder  thereof  will  not  de- 
mand of  the  Adams  Express  Company  a  sum  exceeding  fifty  dollars 
for  the  loss  or  detention  of,  or  damage  to,  the  property  aforesaid." 

It  was  held,  reversing  the  judgment  below,  that  the  stipulation  did 
not  cover  a  loss  accruing  through  negligence,^ '^  Johnson,  J.,  in  the 
opinion,  saying:  "But  the  contract  will  not  be  deemed  to  except  losses 
occasioned  by  the  carrier's  negligence,  unless  that  he  expressly  stipu- 
lated." In  each  of  these  cases,  the  language  of  the  contract  was  suffi- 
ciently broad  to  include  losses  occasioned  by  ordinary  or  gross  negli- 
gence, but  the  doctrine  is  repeated  that,  if  the  carrier  asks  for  im- 
munity for  his  wrongful  acts,  it  must  be  expressed,  and  that  general 
words  will  not  be  deemed  to  have  been  intended  to  relieve  him  from 
the  consequences  of  such  acts. 

These  authorities  are  directly  in  point,  and  they  accord  with  a  wise 
public  policy,  by  which  courts  should  be  guided  in  the  construction  of 
contracts  designed  to  relieve  common  carriers  from  obligations  to  exer- 
cise care  and  diligence  in  the  prosecution  of  their  business,  which  the 
law  imposes  upon  ordinary  bailees  for  hire  engaged  in  private  business. 
In  the  recent  case  of  Railroad  Co.  v.  Lockwood,  17  Wall.  357,  21  L. 
Ed.  627  [post,  p.  415],  the  Supreme  Court  of  the  United  States  decided 
that  a  common  carrier  cannot  lawfully  stipulate  for  exemption  from 

33  Ace.  Westcott  V.  Fargo,  fil  N.  Y.  542,  19  Am.  Rep.  .300  (1875);  Bermel 
T.  N.  Y.,  etc.,  Co.,  172  N.  Y.  039.  6r>  N.  E.  UV.i  (1902);  Boseowitz  v.  Ada:us 
Ex.  Co.,  93  111.  523.  34  Am.  Rep.  191  (1S79).  And  see  Black  v.  Goodrich  Trans. 
Co  55  Wis.  ;^19,  13  N.  W.  244,  42  Am.  Rep.  713  (1SS2),  Contra:  Vac.  Ex.  Co. 
V.  Foley.  4r,  Kan.  457,  20  Fac.  005.  12  L.  R.  A.  799,  20  Am.  St.  Rep.  107  (1891); 
Caldeion  v.  Atlas  S.  S.  Co..  09  Fed.  574,  10  C.  C.  A.  332  (1895 1.  reversed  on 
anotlier  point  170  V.  S.  272,  18  Snp.  Ct.  588.  42  L.  Ed.  10;i3  (1898)  ;  Michal- 
itsehke  v.  Wells,  118  Cal.  083,  50  Fac.  847  (1897).  senible;  Asbendon  v. 
London,  etc..  Ry.  Co.,  L.  R.  5  Kx.  D.  190  (1880);  Baxter's  Leather  Co.  v. 
Royal  Mail  Co..  [1908]  2  K.  B.  020.  And  see  Durgin  v.  Am.  Ex.  Co.,  00  X.  H. 
277.  20  Atl.  328,  9  L.  R.  A.  453  (1890).  But  cf.  Belger  v.  Dinsmore,  51  N.  Y. 
100,  10  Am.  Rep.  575  (1872), 


438  EXCEPTIONAL   LIABILITY   OP   COMMON  CARRIER.  (Part  4: 

responsibility  for  the  neg-ligence  of  himself  or  his  servants.  If  we 
felt  at  liberty  to  review  the  question,  the  reasoning  of  Justice  Brad- 
ley in  that  case  would  be  entitled  to  serious  consideration;  but  the 
right  thus  to  stipulate  has  been  so  repeatedly  affirmed  by  this  court, 
that  the  question  cannot  w^ith  propriety  be  regarded  as  an  open  one 
in  this  state.  Wells  v.  Steam  Nav.  Co.,  8  N.  Y.  375 ;  Dorr  v.  New 
Jersey  Steam  Nav.  Co..  11  N.  Y.  485,  62  Am.  Dec.  125  [ante,  p.  407]  ; 
Wells  V.  New  York  Cent.  R.  Co.,  24  N.  Y.  181-19G;  Bissell  v.  New 
York  Cent.  R.  Co.,  25  N.  Y.  442,  82  Am.  Dec.  369 ;  Guillaume  v.  Ham- 
burgh &  American  Packet  Co.,  42  N.  Y.  212,  1  Am.  Rep.  512 ;  Poucher 
V.  New  York  Cent.  R.  Co.,  49  N.  Y.  263,  10  Am.  Rep.  364;  Cragin  v. 
New  York  Cent.  R.  Co.,  51  N.  Y.  61,  10  Am.  Rep.  559. 

The  remedy  is  with  the  Legislature,  if  remedy  is  needed.  But,  upon 
the  question  involved  here,  it  is  correctly  stated  in  that  case  that  "a 
review  of  the  cases  decided  by  the  courts  of  New  York  shows  that, 
though  they  have  carried  the  power  of  the  common  carrier  to  make 
special  contracts  to  the  extent  of  enabling  him  to  exonerate  himself 
from  the  effects  of  even  gross  negligence,  yet  that  this  effect  has  never 
been  given  to  a  contract  general  in  its  terms."  Such  has  been  the 
uniform  course  of  decisions  in  this  and  most  of  the  other  states,  and 
public  policy  demands  that  it  should  not  be  changed.  It  cannot  be 
said  that  parties,  in  making  such  contracts,  stand  on  equal  terms.  The 
shipper,  in  most  cases,  from  motives  of  convenience,  necessity,  or  ap- 
prehended injury,  feels  obliged  to  accept  the  terms  proposed  by  the 
carrier,  and  practically  the  contract  is  made  by  one  party  only,  and 
should,  therefore,  be  construed  most  strongly  against  him ;  and  espe- 
cially should  he  not  be  relieved  from  the  consequences  of  his  own 
wrongful  acts  under  general  words  or  by  implication.     *     *     * 

The  only  authority  seeming  to  favor  the  position  of  the  respond- 
ent is  in  Cragin  v.  N.  Y.  C.  R.  R.  Co.  (1872)  51  N.  Y.  61.  10  Am. 
Rep.  559.  The  loss  of  the  hogs  in  that  case  was  caused  by  heat,  and 
the  negligence  attributed  was  in  not  cooling  them  off  with  water.^* 

34  In  that  case  a  shipper  of  hoa-s  undertook  the  risk  of  injury  "in  conse- 
quence of  heat,  suffocation,  or  other  ill  effects  of  beina:  crowded."  Earl.  C. 
J.,  said:  "If  it  be  held  that  this  stipulation  simply  exempts  the  defendant 
from  liability  for  injuries  to  the  hogs  from  heat  without  any  fault  on  its 
part,  then  it  sets  notiiing;  for  in  such  case,  without  the  stipulation,  it  would 
not  be  responsible.  Force  and  effect  can  be  given  to  this  stipulation  only  by 
holding  that  it  was  intended  to  exempt  the  defendant  from  negligence,  in 
consequence  of  which  the  hogs  died  from  heat." 

For  a  like  reason  it  has  been  held  that  a  general  exemption  in  a  passenger 
ticket  is  intended  to  apply  to  bodily  injury  caused  by  the  carrier's  negligence. 
McCawley  v.  Furness  Ry.  Co.,  L.  R.  8  Q.  B.  57  (1872),  "at  own  risk";  Meuer 
V.  Chicago,  etc.,  R.  Co.,  5  S.  D.  568.  59  N.  W.  »45,  25  L.  R.  A.  81,  49  Am.  St. 
Rep.  898  (1894).  "personal  injury  from  whatever  cause."  See.  al.so,  Bissell 
V.  N.  Y.  C.  R.  Co.,  25  N.  Y.  442,  82  Am.  Dec.  3G9  (18(52);  Hosmer  v.  Old  Col. 
H  Co.,  156  Mass,  506,  31  N.  E.  652  (1892);  Chicago,  etc.,  R.  Co.  v.  Hamler. 
215  111.  525.  74  N.  E,  705.  1  K  R.  A.  (X.  S.)  674.  106  Am.  St.  Rep.  187  (1905). 
Contra:  Long  v.  Lehigh  Valley  R.  Co.,  130  Fed.  870,  65  C.  C.  A.  354  (1904), 
semble. 


Ch.  4)  LIMITATION    OP   LIABILITY.  439 

We  do  not  think,  under  the  pecuHar  stipulation,  and  the  character  of 
the  property  in  that  case,  that  it  is  in  conflict  with  the  views  before 
expressed. 

The  judgment  of  the  General  Term  must  be  reversed,  and  that  of 
the  County  Court  afifirmed.^^ 


LAMB  V.  CAMDEN  &  A.  R.  &  TRANSP.  CO. 
(Court  of  Appeals  of  New  York,  1871,     46  N.  Y.  271,  7  Am.  Rep.  327.) 

Appeal  from  judgment  of  the  General  Term  of  the  New  York 
Common  Pleas,  affirming  a  judgment  entered  upon  a  verdict  in  favor 
of  plaintiff,  and  also,  affirming  order  denying  motion  for  new  trial. 

The  action  is  brought  against  defendant  as  a  common  carrier,  to 
recover  damages  for  the  non-delivery  of  a  quantity  of  cotton.   *     *     * 

Grover,  J.^**  *  *  *  jt  ^y^5  proved  by  the  defendant  that  the  cot- 
ton in  question  was  destroyed  by  fire  while  in  a  shed  upon  the  dock 
of  the  defendant,  where  it  had  been  placed  by  the  defendant.  The 
question  was  made  upon  the  trial  whether  this  proof,  of  itself,  consti- 
tuted a  defense  to  the  action,  or  whether  the  defendant  was  bound  to 
go  further,  and  show  that  it  and  its  employes  were  free  from  all  neg- 
ligence in  the  origin  and  progress  of  the  fire,  or  whether  it  was  in- 
cumbent upon  the  plaintiff,  to  maintain  the  action,  to  prove  that  the 

3  5  Ace.  Phillips  V.  Clark,  2  C.  B.  (N.  S.)  1.56  (18.j7),  "uot  accountable  for 
leakage  or  breakage";  Compania  La  Flecha  v.  Brauer,  168  U.  S.  lOJ,  18  Sup. 
Ct.  12,  42  L.  Ed.  398  (1897).  "at  owner's  risk"';  Lowenstein  v.  I^mbard.  164 
N.  Y.  324,  .58  N.  E.  44  (190O);  "liability  under  this  bill  of  lading  shall  be 
based  on  value  at  place  of  shipment";  Price  v.  Union,  etc.,  Co.,  [1904]  1  K. 
B.  412.  "loss  which  can  be  covered  by  insurance." 

An  exception  of  loss  by  "thieves  of  whatever  kind,  whether  on  board  or 
not,"  or  caused  by  neglect  or  error  in  judgment  of  persons  in  the  shipowner's 
employ,  does  not  apply  to  theft  by  men  of  the  stevedore  employed  by  the 
carrier  to  load  the  ship.     Steinman  v.  Angler  Line.  [1891]  1  Q.  B.  619. 

An  exception  in  a  maritime  bill  of  lading  will,  unless  a  contrary  intent 
clearly  appears,  be  construed  as  not  intended  to  relieve  the  carrier  from 
liability  for  the  unseaworthiness  of  his  ship.  Steel  v.  State  Line  S.  S.  Co.. 
L.  R.  3  App.  Cas.  72  (1877).  "perils  of  the  seas  of  whatever  nature  or  kind 
soever  and  howsoever  caused"  held  inapiilicable  where  the  sea  burst  througli 
a  porthole  owing  to  neglect  of  the  crew  in  leaving  it  without  sufficient  fasten- 
ing at  the  beginning  of  the  voyage ;  The  Carib  Prince,  170  T'.  S.  6.55.  18  Sup. 
Ct.  753.  42  L.^  Ed.  il81  (1898),  "latent  defects  in  hull"  held  inapplicable  to  a 
defect  existing  when  the  voyage  began;  Thin  v.  Richards,  [1892]  2  Q.  B. 
141,  "any  act.  neglect,  or  default  whatever  *  *  *  in  the  navigation  or  man- 
agement of  the  ship"  held  inapplicable  to  loss  due  to  the  engineer's  failure 
f.o  take  on  coal  enough  at  a  port  of  call. 

In  Carr  v.  Lancashire,  etc.,  Ry.  Co..  [1852]  7  Ex.  707  (approved  per  Blackburn 
and  Crompton.  .J.L,  in  Peek  v.  No.  Staffordshire  Ry.  Co..  10  H.  L.  C.  473,  504, 
505,  529  [186.3]),  the  words  "subject  to  owner's  undertaking  all  risks  of  con- 
veyance whatsoever,  as  the  company  will  not  be  responsible  for  any  injury 
or  damage  (howsoever  cau.sed),"  were  held  to  relieve  the  carrier  for  loss  by 
gross  negligence.  Parke.  B.,  said:  "It  is  not-  for  us  to  fritter  away  the  true 
sense  and  meaning  of  these  contracts,  merely  with  a  view  to  make  men 
careful." 

3  6  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


440  EXCErXIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

fire  causing  the  loss  resulted  from  such  negligence ;  in  other  words, 
whether  the  plaintiff  was  bound  to  prove  that  the  fire  causing  the 
loss  resulted  from  the  negligence  of  the  defendant,  or  the  latter  was 
in  the  first  instance,  bound  to  prove  itself  free  from  all  negligence  in 
that  respect.  In  considering  this  question,  it  must  be  borne  in  mintl 
that  it  has  already  been  determined  that  the  defendant  was  exonerated 
from  all  liability  as  carrier  for  a  loss  caused  by  the  destruction  of  the 
cotton  by  fire  by  an  express  provision  of  the  contract  in  pursuance  of 
which  it  transported  the  cotton.  Relieved  of  this  responsibility,  it 
was  liable  only,  in  case  it  was  so  destroyed,  as  bailee  for  hire ;  and 
it  is  undisputed  that  such  a  bailee  is  liable  for  the  loss  of  the  property 
only  in  cases  where  the  loss  is  the  result  of  his  negligence. 

The  question  is  whether,  in  case  of  loss  by  a  bailee  for  hire,  the 
bailor  can  recover  upon  simple  proof  of  loss,  unless  the  bailee  shall 
prove  that  he  was  free  from  all  negligence  contributing  to  such  loss, 
or  whether  the  bailor  must  go  further,  and  prove  that  the  loss  was 
caused  by  the  negligence  of  the  bailee.  I  believe  this  to  be  a  fair 
statement  of  the  question  between  the  parties  to  the  present  action ; 
and  yet,  so  stated,  no  one  will  hardly  insist  that  the  bailor  can  recover 
without  affirmatively  proving  that  the  loss  was  caused  by  the  negli- 
gence of  the  bailee.  The  decisions  are  numerous  to  this  effect,  based 
upon  the  familiar  principle  that  negligence,  being  a  wrong,  will  not 
be  presumed,  but  must  be  proved  by  the  party  charging  it  and  seek- 
ing a  recovery  founded  thereon.  I  shall  cite  a  few  only.  Railroad  Co. 
V.  Reeves,  10  Wall.  176,  19  L.  Ed.  909;  N.  J.  Steam  Nav.  Co.  v.  Mer- 
chants' Bank,  6  How.  344,  12  L.  Ed.  465 ;  Newton  v.  Pope,  1  Cow.  109  ; 
Schmidt  V.  Blood.  9  Wend.  268,  24  Am.  Dec.  143  ;  French  v.  Buff.,  etc., 
R.  R.  (decided  by  the  Court  of  Appeals)  43*  N.  Y.  108. 

Some  of  these  were  cases  of  loss  by  carriers,  proved  to  have  been 
from  causes  for  which  they  were  not  liable  as  carriers ;  others  where 
the  loss  was  by  other  bailees.  To  these  might  be  added  other  cases  in 
the  Supreme  Court  of  the  United  States,  in  the  courts  of  this  and 
other  states,  and  in  England ;  but  it  is  unnecessary.  Cases  may  occur 
where  the  proof  of  the  loss  and  circumstances  connected  therewith 
may  show  a  case  of  presumptive  negligence  in  the  defendant,  such  as 
will  entitle  the  plaintiff  to  recover  upon  that  ground,  in  the  absence 
of  further  proof.  To  illustrate :  A  passenger  upon  a  railroad,  re- 
ceiving an  injury  caused  by  the  cars  running  off  the  track,  may  rely 
upon  the  fact  that  they  did  run  off  as  evidence  of  negligence ;  never- 
theless, the  onus  is  upon  him  of  establishing  to  the  satisfaction  of  the 
jury  that  his  injury  was  caused  by  the  negligence  of  the  defendant, 
and,  unless  he  satisfies  the  jury,  affirmatively,  of  this  fact  from  all  the 
evidence,  he  is  not  entitled  to  recover.  Curtis  v.  Rochester,  etc.,  Rail  • 
road,  18  N.  Y.  534,  75  Am.  Dec.  258. 

It  sometimes  occurs,  in  the  progress  of  a  trial,  that  a  party  holding 
the  affirmative  of  the  issue,  and  consequently  bound  to  prove  it,  in- 
troduces evidence  which,  uncontradicted,  proves  the   fact  alleged  by 


Ch.  4)  LIMITATION    OF   LIABILITY.  441 

him.  It  has,  in  such  cases,  frequently  been  said  that  the  burden  of 
proof  was  changed  to  the  other  side ;  but  it  was  never  intended  thereby 
that  the  party  bound  to  prove  the  fact  was  reheved  from  this,  and  that 
the  other  party,  to  entitle  him  to  a  verdict,  was  required  to  satisfy  the 
jury  that  the  fact  was  not  as  alleged  by  his  adversary.  In  such  cases,, 
the  party  holding  the  affirmative  is  still  bound  to  satisfy  the  jury,, 
affirmatively,  of  the  truth  of  the  fact  alleged  by  him  or  he  is  not  en- 
titled to  a  verdict.  In  the  present  case,  to  entitle  the  plaintiff  to  recov- 
er, he  was  bound  to  prove  that  the  fire  which  consumed  the  cotton  re- 
sulted from  the  negligence  of  the  defendant. 

The  remaining  inquiry  is  whether  the  rule  requiring  this  was  vio- 
lated upon  the  trial,  from  which  the  defendant  might  have  been  prej- 
udiced, after  proof  had  been  given  by  the  defendant  showing  the 
destruction  of  the  cotton  by  fire.  Its  counsel  proposed  to  rest  his  case, 
reserving  the  right  to  rebut  any  testimony  that  might  be  adduced  by 
the  plaintiff,  tending  to  show  that  the  destruction  of  the  cotton  by  fire 
was  occasioned  through  the  defendant's  negligence  or  default.  The 
plaintiff's  counsel  insisted  that  the  defendant  was  bound  to  prove  that 
it  had  not  been  guilty  of  negligence,  and  that  the  defendant's  case 
must  then  be  exhausted.  The  court  thereupon  decided  that  the  bur- 
den of  proof  was  on  the  defendant  to  show  that  the  destruction  of  the 
cotton  by  fire  was  not  caused  by  negligence  on  its  part.  This  was 
error.  Although,  in  proving  the  destruction  of  the  cotton  by  fire,  it 
appeared  that  the  fire  originated  on  a  boat  of  the  defendant  laying 
at  its  dock,  this  was  only  evidence  tending  to  show  negligence  of  the 
defendant.  Whether  sufficient  prima  facie  to  entitle  the  plaintiff  to  a 
verdict  is  a  question  not  necessary  to  decide,  as  no  ruling  thereon  was 
made  by  the  court. 

Be  that  as  it  may,  the  burden  was  still  upon  the  plaintiff  to  establish, 
to  the  satisfaction  of  the  jury  from-  all  the  evidence,  that  the  fire  was 
the  result  of  the  negligence  of  the  defendant.  Other  evidence  was^ 
given,  making  the  question  of  the  defendant's  negligence,  in  respect 
to  the  fire,  proper  to  be  decided  by  the  jury.  The  court,  among  other 
things,  charged  the  jury  that,  although  the  defendant  had  been  freed 
from  its  ordinary  measure  of  responsibility  as  insurer,  it  is  not  re- 
lieved from  the  burden  of  satisfying  you  that  this  loss,  which  it  is 
beyond  doubt  happened  by  fire,  was  not  occasioned  by  negligence  on 
its  part.  To  this  the  defendant's  counsel  excepted.  In  another  part 
of  the  charge  the  judge  stated  that  the  real  importance  of  the  ques- 
tion as  to  reasonable  time  (meaning  for  the  removal  of  the  cotton 
by  plaintiff),  consists  in  this  case  of  the  fact  that,  down  to  this  point  of 
time,  the  burden  of  establishing  that  there  was  not  any  such  negli- 
gence as  I  have  stated  rests  upon  the  defendant.  This  part  of  the 
charge  was  excepted  to.  Both  exceptions  were  well  taken.  The  idea 
plainly  conveyed  to  the  jury  was  that  they  should  find  for  the  plaintiff, 
unless  satisfied  from  the  evidence  that  the  fire  was  not  the  result  of 
the  defendant's  negligence,  thus  leaving  them  to  find  for  the  plaintiff, 


142  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

if  unable  to  determine  whether  the  fire  so  resulted  or  not,  while  the 
instruction  should  have  been  to  find   for  the  defendant,  unless  they 
found,  from  all  the  evidence,  that  the  fire  was  the  result  of  the  negli- 
gence of  the  defendant.     *     *     * 
Judgment  reversed.^ ^ 


RYAN  V.  MISSOURI,  K.  &  T.  RY.  CO. 

(Supreme  Court  of  Texas,  1886.     65  Tex.  13.  57  Am.  Rep.  589.) 

Appeal  from  Grayson. 

This  suit  was  instituted  in  the  district  court  of  Grayson  county  to 
recover  from  the  defendant  the  value  of  certain  goods,  wares  and 
merchandise  which  defendant,  in  St.  Louis,  Mo.,  agreed  and  con- 
tracted to  deliver  in  Honey  Grove,  Tex.,  and  which  were  not  deliver- 
ed. The  bill  of  lading  had  a  printed  head,  in  which  was  stipulated 
certain  exceptions  from  liability,  among  others,  that  of  destruction 
by  fire.     The  goods  were  shipped  by  A.  F.  Shapleigh  &  Co.,  from 

37  Ace.  Transportation  Co.  v.  Downer,  11  Wall.  129.  20  L.  Ed.  160  (1870). 
In  The  Glendarroch,  [1894]  P.  D.  226,  2.31.  Lord  Esher  said:  "When  you  come 
to  the  exceptions,  among  others,  there  is  that  one,  perils  of  the  sea.  There  are 
no  words  which  say  'perils  of  the  sea  not  caused  by  the  negligence  of  tlie 
captain  or  crew.'  You  have  got  to  read  those  words  in  by  a  necessary  in- 
ference. How  can  you  read  them  in?  They  can  only  be  read  In,  in  my 
opinion,  as  an  exception  upon  the  exceptions.  You  must  read  in,  'Except  the 
loss  is  by  perils  of  the  sea,  unless  or  except  that  loss  is  the  result  of  the 
ne.gligence  of  the  servants  of  the  owner.'  That  being  so,  I  think  that  ac- 
cording to  the  ordinary  course  of  practice  each  party  would  have  to  prove 
the  part  of  the  matter  which  lies  upon  him.  The  plaintiffs  would  have  to 
prove  the  contract  and  the  nondelivery.  If  they  leave  that  in  doubt,  of 
course  they  fail.  The  defendants'  ans^ver  is,  'Yes;  but  the  case  was  brought 
within  the  exception — within  its  ordinary  meaning.'  That  lies  upon  them. 
Then  the  plaintiffs  have  a  right  to  say  there  are  exceptional  circumstances, 
viz.,  that  the  damage  was  brought  about  by  the  negligence  of  the  defendants' 
servants,  and  it  seems  to  me  that  it  is  for  the  plaintiffs  to  make  out  that 
second  exception.  In  my  opinion,  you  find  in  all  the  books,  down  to  the 
most  modern  times,  that  the  pleading  followed  that  view  of  the  burden  of 
proof.  The  declaration  stated  the  bill  of  lading,  and.  relying  on  the  first  and 
substantive  part  of  the  bill  of  lading,  alleged  nondelivery.  Strictly  speaking, 
the  declaration  could  not  properly  have  stated  anything  about  negligence, 
because  negligence  was  Immaterial.  The  plea  followed  the  terms  of  the  excep- 
tion construed  in  their  ordinary  sense — that  is,  that  the  loss  was  a  loss  by 
perils  of  the  sea.  No  plea  that  can  be  found  in  the  books  ever  went  on  to 
say  that  the  loss  by  perils  of  the  sea  was  not  caused  by  negligence.  Yet,  if 
the  contention  be  true  that  the  burden  of  proof  to  that  extent  lies  on  the  de- 
fendant, every  one  of  those  pleas  without  that  allegation  was  no  answer  to 
the  declaration  and  was  open  to  demurrer.  There  is  no  such  case  in  which 
a  demurrer  was  brought  forward  and  supported.  As  that  was  so,  it  shows 
that  it  was  no  part  of  the  proof  which  the  defendant  was  bound  to  giva 
Then  you  have  a  long  succession  of  cases,  all  setting  out  a  replication,  and 
that  replication  in  the  given  ease  is:  'Yes,  it  is  true  there  was  a  loss  by 
perils  of  the  sea  within  the  prima  facie  exception;  but  that  was  brought 
about  by  the  negligence  of  your  servants — i.  e.,  by  your  captain  and  crew.' 
The  plaintiff  could  not  depart  from  his  declaration;  but  he  could  support  it  by 
showing  that  the  exception  was  not  satisfied,  because  there  had  been  neg- 
ligence." 


Ch.  4)  LIMITATION    OF   LIABILITY.  443 

whom  they  had  been  purchased  by  plaintiff,  and  were  destroyed  by 
fire  while  in  defendant's  possession.  The  cause  was  submitted  to  the 
court  and  decided  in  favor  of  defendant. 

Willie,  C.  J.^^  *  *  *  'j^j^^  question  is,  the  railroad  company 
being  liable  if  the  goods  were  destroyed  by  fire  through  its  negli- 
gence, was  it  necessary  for  the  appellants  to  make  on  their  part  any 
proof  upon  this  subject,  or  did  it  devolve  upon  the  company  to  show 
that  the  fire  did  not  occur  through  its  negligence  or  want  of  proper 
care? 

This  question  as  to  the  burden  of  proof,  when  a  carrier  is  sought  to 
be  made  liable  for  the  nondelivery  of  goods  under  a  special  contract 
like  the  present,  has  elicited  a  contrariety  of  opinion  from  the  courts 
of  the  American  Union.  Law  writers  have  also  been  somewhat  di- 
vided in  announcing  the  principle  to  be  derived  from  these  decisions. 

It  has  never  been  passed  upon  by  this  court,  and  we  feel  authorized 
to  adopt  that  view  which  seems  to  be  the  best  supported  by  principle, 
regardless  of  the  preponderance  of  authority  upon  the  subject. 

It  is  said  that  the  rule  requiring  the  plaintiff,  after  the  carrier  has 
shown  that  the  goods  were  destroyed  by  fire  or  other  excepted  cause, 
to  prove  that  it  occurred  through  the  negligence  of  the  carrier,  rests 
upon  the  principle  that  he  who  avers  negligence  must  prove  it.  Under 
an  ordinary  bill  of  lading,  with  no  special  exceptions,  if  the  goods  are 
lost  by  the  act  of  God,  such  as  a  peril  of  the  sea,  the  burden  is  upon 
the  carrier  to  show  that  his  negligence  did  not  contribute  to  bring 
about  the  accident.^^  Story  on  Bailm.  §  529 ;  Shaw  v.  Gardner,  12 
Gray  (Mass.)  488;   Humphreys  v.  Reed,  6  Whart.  (Pa.)  435. 

Yet  the  plaintiff  asserts  negligence  in  the  one  case  no  more  than 
in  the  other.  A  carrier  by  water  is  as  much  bound  to  protect  his 
cargo  from  fire,  though  that  be  within  the  exceptions  of  his  contract, 
as  he  is  to  construct  and  manage  his  vessel  and  stow  his  cargo  so  as 
to  avoid,  as  much  as  possible,  the  dangers  of  the  seas.  We  cannot 
see  then  why  he  should  not  account  for  the  manner  of  the  loss,  and 
the  causes  wdiich  brought  it  about  as  much  in  the  one  case  as  in  the 
other. 

In  a  suit  of  this  character,  it  is  sufficient  for  the  plaintiff  to  aver 
and  prove  that  the  goods  were  delivered  to  the  carrier,  and  that  they 
have  not  been  received  at  their  point  of  destination.  This  is  said  to 
make  a  prima  facie  case  of  negligence,  which  the  carrier  must  rebut 
or  the  plaintiff  will  recover.  He  may  rebut  it  only  in  one  way,  and 
that  is  by  showing  that  the  goods  were  lost  by  one  of  the  exceptions 
known  to  the  common  law,  or  one  of  the  special  exceptions  reserved 
in  his  contract  with  the  shipper.  If  by  neither  a  common-law  excep- 
tion nor  one  specially  reserved  he  is  exonerated,  he  must  show  that 
the  loss   happened  without  negligence   on   his   part.     Take,    for   in- 

3  8  Tarts  of  the  opinion  have  been  omitted. 

39  See  Carriers,  9  Cent.  Dig.  §§  578,  579,  4  Dec.  Dig.  §  132. 


444  EXCETTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4: 

Stance,  the  exception  of  loss  by  fire.  The  contract  recites  merely  that 
if  the  loss  occurs  by  fire  the  carrier  should  not  be  liable,  but  the  law 
incorporates  the  written  words  "without  negligence  on  the  part  of 
the  carrier."  What  the  law  inserts  is  as  much  a  part  of  the  contract 
as  what  is  expressly  written  in  it.  When,  therefore,  the  plaintiff 
makes  out  a  prima  facie  case  of  negligence,  by  proving  that  the  goods 
were  not  delivered,  is  this  case  rebutted  by  proof  that  they  were  not 
delivered  by  reason  of  a  fact  which  may  have  existed,  and  the  carrier 
still  have  been  negligent?  If  so,  he  can  stop  with  the  presumption  of 
negligence  arising  from  nondelivery  still  resting  upon  him,  and  call 
upon  his  adversary  to  further  strengthen  his  own  prima  facie  case,, 
or  it  shall  lose  this  character  altogether.  This  would  be  against  all 
the  rules  of  evidence. 

There  is  another  important  rule  which  furnishes  additional  reasons 
why  the  burden  of  proof  to  show  diligence  should  be  upon  the  car- 
rier, which  is  that  the  burden  of  proof  is  on  him  who  best  knows  the 
facts.  Baker  v.  Brinson,  9  Rich.  Law  (S.  C.)  201,  67  Am.  Dec.  548; 
Berry  v.  Cooper,  28  Ga.  543 ;  1  Greenl.  Ev.  79.  Here  the  fire  occur- 
red at  night,  whilst  the  goods  were  in  transit,  and  in  care  of  the  ap- 
pellant's employes.  Who  was  most  likely  to  know  the  facts  which 
brought  about  the  fire,  or  prevented  the  goods  from  being  saved  from 
the  flames — the  plaintiff,  who  was  absent,  or  the  employes  of  the  com- 
pany, who  were  present?  These  latter  alone  could  tell  whether  im- 
proper storage,  defective  machinery,  or  negligent  use  of  lights,  or 
other  similar  cause  set  the  goods  on  fire.  Whilst  they  would  have 
been  competent  witnesses  for  the  plaintiff,  they  were  not  under  their 
control,  but  under  command  of  the  defendant,  and  it  is  the  party  pre- 
sumed to  know  where  these  employes  are  to  be  found.  If  the  rule 
is  that  the  company  must  furnish  evidence  of  the  circumstances  at- 
tending the  fire  so  as  to  clear  itself  of  the  charge  of  negligence,  it  can 
and  will  be  produced  whenever  their  testimony  is  favorable.  If  it  is  to 
the  contrary,  the  witnesses  may  not  be  forthcoming.  It  is  a  salutary 
rule  Avhich  presumes  the  existence  of  a  fact  against  a  party  who  has 
the  means  of  disproving  it  in  his  power  and  fails  to  make  use  of 
them.     *     *     * 

A  fire  would  not  ordinarily  destroy  goods  upon  a  train  as  this  did 
without  some  negligence  on  the  part  of  the  carrier.  The  presump- 
tions all  being  against  the  appellant,  upon  the  question  of  negligence, 
and  the  proof  of  care,  if  it  existed,  lying  wholly  in  his  power,  we  think, 
in  the  absence  of  evidence  on  its  part  to  show  proper  care  and  dili- 
gence, it  must  be  held  that  the  goods  were  not  delivered,  but  consum- 
ed through  the  negligence  of  the  appellant,  and  the  judgment  must 
accordingly  be  reversed  and  the  cause  remanded,  and  it  is  so  ordered. 

Reversed  and  remanded.*'' 

40  For  the  conflicting  decisions  on  this  subject,  see  Carriers,  9  Cent.  Dig.  § 
725,  4  Dec.  Dig.  §  1G3 ;   6  Cyc.  521, 


Ch.  4)  LIMITATION    OF   LIABILITY.  445 

NEW  YORK  CENT.  R.  CO.  v.  LOCKWOOD. 

(Supreme  Court  of  the  United  States,  1873.     17  Wall.  357,  21  L.  Ed.  627.) 

Error  to  the  Circuit  Court  for  the  Southern  District  of  New  York; 
the  case  being  thus  : 

Lockwood,  a  drover,  was  injured  whilst  traveUng  on  a  stock  train 
of  the  New  York  Central  Railroad  Company,  proceeding  from  Buffalo 
to  Albany  and  brought  this  suit  to  recover  damages  for  the  injury. 
He  had  cattle  in  the  train,  and  had  been  required,  at  Buffalo,  to  sign 
an  agreement  to  attend  to  the  loading,  transporting,  and  unloading  of 
them,  and  to  take  all  risk  of  injury  to  them  and  of  personal  injury  to 
himself,  or  to  whomsoever  went  with  the  cattle;  and  he  received  what 
is  called  a  drover's  pass;  that  is  to  say,  a  pass  certifying  that  he  had 
shipped  sufficient  stock  to  pass  free  to  Albany,  but  declaring  that  the 
acceptance  of  the  pass  was  to  be  considered  a  waiver  of  all  claims  for 
damages  or  injuries  received  on  the  train.  The  agreement  stated  its 
consideration  to  be  the  carrying  of  the  plaintiff's  cattle  at  less  than 
tariff  rates. 

It  was  shown  on  the  trial,  that  these  rates  were  about  three  times 
the  ordinary  rates  charged,  and  that  no  drover  had  cattle  carried  on 
those  terms ;  but  that  all  signed  similar  agreements  to  that  which  was 
signed  by  the  plaintiff,  and  received  similar  passes.  Evidence  was 
given  on  the  trial  tending  to  show  that  the  injury  complained  of  was 
sustained  in  consequence  of  negligence  on  the  part  of  the  defendants 
or  their  servants,  but  they  insisted  that  they  were  exempted  by  the 
terms  of  the  contract  from  responsibility  for  all  accidents,  including 
those  occurring  from  negligence,  at  least  the  ordinary  negligence  of 
their  servants;  and  requested  the  judge  so  to  charge.  This  he  re- 
fused, and  charged  that  if  the  jury  were  satisfied  that  the  injury  occur- 
red without  any  negligence  on  the  part  of  the  plaintiff,  and  that  the 
negligence  of  the  defendants  caused  the  injury,  they  must  find  for  the 
plaintiff,  which  they  did.  Judgment  being  entered  accordingly,  the 
railroad  company  took  this  writ  of  error.     *     *     * 

Mr.  Justice  Bil\dley  delivered  the  opinion  of  the  court. *^ 

It  may  be  assumed  in  limine,  that  the  case  was  one  of  carriage 
for  hire;  for  though  the  pass  certifies  that  the  plaintifif  was  entitled 
to  pass  free,  yet  his  passage  was  one  of  the  mutual  terms  of  the  ar- 
rangement for  carrying  his  cattle.  The  question  is,  therefore,  dis- 
tinctly raised,  whether  a  railroad  company  carrying  passengers  for 
liire,  can  lawfully  stipulate  not  to  be  answerable  for  their  own  or  their 
servants'  negligence  in  reference  to  such  carriage.     *     *     * 

It  is  strenuously  insisted  *  *  *  that  as  negligence  is  the  only 
ground  of  liability  in  the  carriage  of  passengers,  and  as  the  contract 
is  absolute  in  its  terms,  it  must  be  construed  to  embrace  negligence  as 

41  Parts  of  the  opinion  have  been  omitted. 


446  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

well  as  accident,  the  former  in  reference  to  passengers,  and  both  in 
reference  to  the  cattle  carried  in  the  train.  As  this  argument  seems 
plausible,  and  the  exclusion  of  a  liability  embraced  in  the  terms  of  ex- 
emption on  the  ground  that  it  could  not  have  been  in  the  mind  of  the 
parties  is  somewhat  arbitrary,  we  will  proceed  to  examine  the  ques- 
tion before  propounded,  namely,  whether  common  carriers  may  ex- 
cuse themselves  from  liability  for  negligence.     *     *     * 

It  is  argued  that  a  common  carrier,  by  entering  into  a  special  con- 
tract with  a  party  for  carrying  his  goods  or  person  on  modified  terms, 
drops  his  character  and  becomes  an  ordinary  bailee  for  hire,  and, 
therefore,  may  make  any  contract  he  pleases.  That  is,  he  may  make 
any  contract  whatever,  because  he  is  an  ordinary  bailee;  and  he  is  an 
ordinary  bailee  because  he  has  made  the  contract. 

We  are  unable  to  see  the  soundness  of  this  reasoning.  It  seems  to  us 
more  accurate  to  say  that  common  carriers  are  such  by  virtue  of  their 
occupation,  not  by  virtue  of  the  responsibilities  under  which  they  rest. 
Those  responsibilities  may  vary  in  dififerent  countries,  and  at  different 
times,  without  changing  the  character  of  the  employment.     *     *     * 

A  common  carrier  may,  undoubtedly,  become  a  private  carrier,  or  a 
bailee  for  hire,  when,  as  a  matter  of  accommodation  or  special  en- 
gagement, he  undertakes  to  carry  something  which  it  is  not  his  busi- 
ness to  carry.  For  example,  if  a  carrier  of  produce,  running  a  truck 
boat  between  New  York  City  and  Norfolk,  should  be  requested  to 
carry  a  keg  of  specie,  or  a  load  of  expensive  furniture,  which  he 
could  justly  refuse  to  take,  such  agreement  might  be  made  in  refer- 
ence to  his  taking  and  carrying  the  same  as  the  parties  chose  to  make, 
not  involving  any  stipulation  contrary  to  law  or  public  policy.  But 
when  a  carrier  has  a  regularly  established  business  for  carrying  all  or 
certain  articles,  and  especially  if  that  carrier  be  a  corporation  created 
for  the  purpose  of  the  carrying  trade,  and  the  carriage  of  the  articles 
is  embraced  within  the  scope  of  its  chartered  powers,  it  is  a  common 
carrier,  and  a  special  contract  about  its  responsibility  does  not  divest 
it  of  the  character. 

But  it  is  contended  that  though  a  carrier  may  not  stipulate  for  his 
own  negligence,  there  is  no  good  reason  why  he  should  not  be  per- 
mitted to  stipulate  for  immunity  for  the  negligence  of  his  servants, 
over  whose  actions,  in  his  absence,  he  can  exercise  no  control.  If  we 
advert  for  a  moment  to  the  fundamental  principles  on  which  the  law 
of  common  carriers  is  founded,  it  will  be  seen  that  this  objection  is 
inadmissible.  In  regulating  the  public  establishment  of  common  car- 
riers, the  great  object  of  the  law  was  to  secure  the  utmost  care  and 
diligence  in  the  performance  of  their  important  duties — an  object 
essential  to  the  welfare  of  every  civilized  community.  Hence  the 
common-law  rule  which  charged  the  common  carrier  as  an  insurer. 
Why  charge  him  as  such?  Plainly  for  the  purpose  of  raising  the  most 
stringent  motive  for  the  exercise  of  carefulness  and  fidelity  in  his 
trust.     In  regard  to  passengers  the  highest  degree  of  carefulness  and 


Ch.  4)  LIMITATION    OF   LIABILITY.  447 

diligence  is  expressly  exacted.  In  the  one  case  the  securing  of  the 
most  exact  dihgence  and  fidelity  underlies  the  law,  and  is  the  reason 
for  it;  in  the  other  it  is  directly  and  absolutely  prescribed  by  the  law. 
It  is  obvious,  therefore,  that  if  a  carrier  stipulate  not  to  be  bound  to 
the  exercise  of  care  and  diligence,  but  to  be  at  liberty  to  indulge  in 
the  contrary,  he  seeks  to  put  off  the  essential  duties  of  his  employ- 
ment. And  to  assert  that  he  may  do  so  seems  almost  a  contradiction 
in  terms. 

Now,  to  what  avail  does  the  law  attach  these  essential  duties  to  the 
employment  of  the  common  carrier,  if  they  may  be  waived  in  respect 
to  his  agents  and  servants,  especially  where  the  carrier  is  an  artificial 
being,  incapable  of  acting  except  by  agents  and  servants?  It  is  care- 
fulness and  diligence  in  performing  the  service  which  the  law  de- 
mands, not  an  abstract  carefulness  and  diligence  in  proprietors  and 
stockholders  who  take  no  active  part  in  the  business.  To  admit  such 
a  distinction  in  the  law  of  common  carriers,  as  the  business  is  now 
carried  on,  would  be  subversive  of  the  very  object  of  the  law. 

It  is  a  favorite  argument  in  the  cases  which  favor  the  extension 
of  the  carrier's  right  to  contract  for  exemption  from  liability,  that 
men  must  be  permitted  to  make  their  own  agreements,  and  that  it  is 
no  concern  of  the  public  on  what  terms  an  individual  chooses  to  have 
his  goods  carried.  Thus,  in  Dorr  v.  New  Jersey  Steam  Navigation 
Company  [ante,  p.  407,  at  p.  410] ,  the  court  sums  up  its  judgment  thus  : 
"To  say  the  parties  have  not  a  right  to  make  their  own  contract,  and 
to  limit  the  precise  extent  of  their  own  respective  risks  and  liabilities, 
in  a  matter  no  way  affecting  the  public  morals,  or  conflicting  with  the 
public  interests,  would,  in  my  judgment,  be  an  unwarrantable  restric- 
tion upon  trade  and  commerce,  and  a  most  palpable  invasion  of  per- 
sonal right." 

Is  it  true  that  the  public  interest  is  not  affected  by  individual  con- 
tracts of  the  kind  referred  to?  Is  not  the  whole  business  community 
affected  by  holding  such  contracts  valid?  If  held  valid,  the  advanta- 
geous position  of  the  companies  exercising  the  business  of  common 
carriers  is  such  that  it  places  it  in  their  power  to  change  the  law  of 
common  carriers  in  effect,  by  introducing  new  rules  of  obligation. 

The  carrier  and  his  customer  do  not  stand  on  a  footing  of  equality. 
The  latter  is  only  one  individual  of  a  million.  He  cannot  afford  to 
higgle  or  stand  out  and  seek  redress  in  the  courts.  His  business  will 
not  admit  such  a  course.  He  prefers,  rather,  to  accept  any  bill  of  lad- 
ing, or  sign  any  paper  the  carrier  presents;  often,  indeed,  without 
knowing  what  the  one  or  the  other  contains.  In  most  cases,  he  has  no 
alternative  but  to  do  this,  or  abandon  his  business.  In  the  present 
case,  for  example,  the  freight  agent  of  the  company  testified  that 
though  they  made  forty  or  fifty  contracts  every  week  like  that  under 
consideration,  and  had  carried  on  the  business  for  years,  no  other 
arrangement  than  this  was  ever  made  with  any  drover.  And  the  rea- 
son is  obvious  enough — if  they  did  not  accept  this,  they  must  pay 


448  EXCEPTIONAL   LIABILITY   OF   COMJION  CARRIER.  (Part  4 

tariff  rates.  These  rates  were  70  cents  a  hundred  pounds  for  carrying 
from  Buffalo  to  Albany,  and  each  horned  animal  was  rated  at  2,000 
pounds,  making  a  charge  of  $14  for  every  animal  carried,  instead  of 
the  usual  charge  of  $70  for  a  car-load ;  being  a  difference  of  three  to 
one.  Of  course  no  drover  could  afford  to  pay  such  tariff  rates.  This 
fact  is  adverted  to  for  the  purpose  of  illustrating  how  completely  in 
the  power  of  the  railroad  companies  parties  are ;  and  how  necessary 
it  is  to  stand  firmly  by  those  principles  of  law  by  which  the  public 
interests  are  protected. 

If  the  customer  had  any  real  freedom  of  choice,  if  he  had  a  reason- 
able and  practicable  alternative,  and  if  the  employment  of  the  carrier 
were  not  a  public  one,  charging  him  with  the  duty  of  accommodating 
the  public  in  the  line  of  his  employment;  then,  if  the  customer  chose 
to  assume  the  risk  of  negligence,  it  could  with  more  reason  be  said  to 
"be  his  private  aft'air,  and  no  concern  of  the  public.  But  the  condition 
of  things  is  entirely  different,  and  especially  so  under  the  modified 
arrangements  which  the  carrying  trade  has  assumed.  The  business 
is  mostly  concentrated  in  a  few  powerful  corporations,  whose  position 
in  the  body  politic  enables  them  to  control  it.  They  do,  in  fact,  con- 
trol it,  and  impose  such  conditions  upon  travel  and  transportation  as 
they  see  fit,  which  the  public  is  comprlled  to  accept.  These  circum- 
stances furnish  an  additional  argument,  if  any  were  needed,  to  show 
that  the  conditions  imposed  by  common  carriers  ought  not  to  be  ad- 
verse (to  say  the  least)  to  the  dictates  of  public  policy  and  morality. 
The  status  and  relative  position  of  the  parties  render  any  such  condi- 
tions void. 

Contracts  of  common  carriers,  like  those  of  persons  occupying  a 
fiduciary  character,  giving  them  a  position  in  which  they  can  take  un- 
due advantage  of  the  persons  with  whom  they  contract,  must  rest 
upon  their  fairness  and  reasonableness.  It  was  for  the  reason  that 
the  limitations  of  liability  first  introduced  by  common  carriers  into 
their  notices  and  bills  of  lading  were  just  and  reasonable,  that  the 
courts  sustained  them.  It  was  just  and  reasonable  that  they  should 
not  be  responsible  for  losses  happening  by  sheer  accident,  or  dangers 
of  navigation  that  no  human  skill  or  vigilance  could  guard  against; 
it  was  just  and  reasonable  that  they  should  not  be  chargeable  for  money 
or  other  valuable  articles  liable  to  be  stolen  or  damaged,  unless  ap- 
prised of  their  character  or  value;  it  was  just  and  reasonable  that  they 
should  not  be  responsible  for  articles  liable  to  rapid  decay,  or  for  live 
animals  liable  to  get  unruly  from  fright  and  to  injure  themselves  in 
that  state,  when  such  articles  or  live  animals  became  injured  without 
their  fault  or  negligence.  And  when  any  of  these  just  and  reason- 
able excuses  were  incorporated  into  notices  or  special  contracts  as- 
sented to  by  their  customers,  the  law  might  well  give  effect  to  them 
without  the  violation  of  any  important  principle,  although  modifying 
the  strict  rules  of  responsibility  imposed  by  the  common  law.  The 
improved  state  of  society  and  the  better  administration  of  the  laws, 


Ch,  4)  LIMITATION    OF   LIABILITY.  449 

had  diminished  the  opportunities  of  collusion  and  bad  faith  on  the 
part  of  the  carrier,  and  rendered  less  imperative  the  application  of  the 
iron  rule  that  he  must  be  responsible  at  all  events.  Hence,  the  exemp- 
tions referred  to  were  deemed  reasonable  and  proper  to  be  allowed. 
But  the  proposition  to  allow  a  public  carrier  to  abandon  altogether 
his  obligations  to  the  public,  and  to  stipulate  for  exemptions  that  are 
unreasonable  and  improper,  amounting  to  an  abdication  of  the  es- 
sential duties  of  his  employment,  would  never  have  been  entertained 
by  the  sages  of  the  law. 

Hence,  as  before  remarked,  we  regard  the  English  statute  called 
the  Railway  and  Canal  Traffic  Act,  passed  in  1854,  which  declared 
void  all  notices  and  conditions  made  by  common  carriers  except  such 
as  the  judge,  at  the  trial,  or  the  courts  should  hold  just  and  reason- 
able, as  substantially  a  return  to  the  rules  of  the  common  law.  It 
would  have  been  more  strictly  so,  perhaps,  had  the  reasonableness 
of  the  contract  been  referred  to  the  law  instead  of  the  individual  judg- 
es. The  decisions  made  for  more  than  half  a  century  before  the  courts 
commenced  the  abnormal  course  which  led  to  the  necessity  of  that 
statute,  giving  effect  to  certain  classes  of  exemptions  stipulated  for 
by  the  carrier,  may  be  regarded  as  authorities  on  the  question  as  to 
what  exemptions  are  just  and  reasonable.  So  the  decisions  of  our 
own  courts  are  entitled  to  like  effect  when  not  made  under  the  fal- 
lacious notion  that  every  special  contract  imposed  by  the  common 
carrier  on  his  customers  must  be  carried  into  effect,  for  the  simple 
reason  that  it  was  entered  into,  without  regard  to  the  character  of 
the  contract  and  the  relative  situation  of  the  parties. 

Conceding,  therefore,  that  special  contracts,  made  by  common  car- 
riers with  their  customers,  limiting  their  liability,  are  good  and  valid 
so  far  as  they  are  just  and  reasonable;  to  the  extent  for  example,  of 
excusing  them  for  all  losses  happening  by  accident,  without  any  neg- 
ligence or  fraud  on  their  part;  when  they  ask  to  go  still  further,  and 
to  be  excused  for  negligence — an  excuse  so  repugnant  to  the  law  of 
their  foundation  and  to  the  public  good — they  have  no  longer  any 
plea  of  justice  or  reason  to  support  such  a  stipulation,  but  the  con- 
trary. And  then,  the  inequality  of  the  parties,  the  compulsion  under 
which  the  customer  is  placed,  and  the  obligations  of  the  carrier  to 
the  public,  operate  with  full  force  to  divest  the  transaction  of  va- 
lidity. 

On  this  subject  the  remarks  of  Chief  Justice  Redfield,  in  his  recent 
collection  of  American  Railway  Cases,  seem  to  us  eminently  just.  "It 
being  clearly  established,  then,"  says  he,  "that  common  carriers  have 
public  duties  which  they  are  bound  to  discharge  with  impartiality,  we 
must  conclude  that  they  cannot,  either  by  notices  or  special  contracts, 
release  themselves  from  the  performance  of  these  public  duties,  even 
by  the  consent  of  those  who  employ  them ;  for  all  extortion  is  done 
by  the  apparent  consent  of  the  victim.  A  public  officer  or  servant, 
Gkeen  Cabb. — 29 


450  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

who  has  a  monopoly  in  his  department,  has  no  just  right  to  impose 
onerous  and  unreasonable  conditions  upon  those  who  are  compelled 
to  employ  him."    *    *    * 

The  conclusions  to  which  we  have  come  are — 

First.  That  a  common  carrier  cannot  lawfully  stipulate  for  exemp- 
tion from  responsibility  when  such  exemption  is  not  just  and  reason- 
able in  the  eye  of  the  law. 

Secondly.  That  it  is  not  just  and  reasonable  in  the  eye  of  the  law 
for  a  common  carrier  to  stipulate  for  exemption  from  responsibility 
for  the  negligence  of  himself  or  his  servants. 

Thirdly.  That  these  rules  apply  both  to  carriers  of  goods  and  car- 
riers of  passengers  for  hire,  and  with  special  force  to  the  latter. 

Fourthly.  That  a  drover  traveling  on  a  pass,  such  as  was  given  in 
this  case,  for  the  purpose  of  taking  care  of  his  stock  on  the  train,  is 
a  passenger  for  hire. 

These  conclusions  decide  the  present  case,  and  require  a  judgment 
of  affirmance.  We  purposely  abstain  from  expressing  any  opinion 
as  to  what  would  have  been  the  result  of  our  judgment  had  we  con- 
sidered the  plaintifif  a  free  passenger  instead  of  a  passenger  for  hire. 

Judgment  affirmed. ^^ 

4  2  The  dootriue  of  Railroad  Co.  v.  Lockwood  prevails  generally  in  the 
United  States.  It  now  prevails  in  Illinois.  111.  Cent.  R.  Co.  v.  Beebe,  174 
111.  13.  50  N.  E.  1019,  43  L,.  R.  A.  210.  66  Am.  St.  Rep.  253  (1898) ;  Bait.  &  O. 
S.  W.  Rt.  Co.  V.  Fox.  113  111.  App.  180  (1904).  A  contrary  doctrine  prevails 
in  New  York  and  in  England.  Wilson  v.  N.  Y.  C.  R.  Co.,  97  N.  Y.  87  (1884); 
Hodge  V.  Rutland  R.  Co.,  112  App.  Dlv.  142,  97  X.  Y.  Supp.  1107  (1906);  Black- 
burn. J.,  in  Peek  v.  No.  Staffordshire  Rv.  Co..  10  H.  h.  Cas.  473,  494-507, 
511.  512  (18631 :    In  re  Mo.  S.  S.  Co..  42  Ch.  D.  321  (1889). 

For  legislation  by  Congress  in  regard  to  contract  exemption  of  carriers 
for  negligence,  see  the  Harter  Act  of  1893  (27  Stat.  445  [U.  S.  Comp.  St. 
1901,  p.  2946]).  interpreted  in  Calderon  v.  Atlas  ,S.  S.  Co..  170  U.  S.  272,  18 
Sup.  Ct.  588,  42  K  Ed.  1033  (1898),  and  Knott  v.  Botany  Mills,  179  U.  S.  69. 
21  Sup.  Ct.  30.  45  L.  Ed.  90  (1900),  and  section  20  of  the  Hepburn  Act  of  1906 
(34  Stat.  584,  595  [U.  S.  Comp.  St.  Supp.  1909,  p.  1104]).  "That  any  common 
carrier,  railroad,  or  transportation  company  receiving  property  for  transporta- 
tion from  a  point  in  one  state  to  a  point  in  another  state  shall  issue  a  re- 
ceipt or  bill  of  lading  therefor  and  shall  be  liable  to  the  lawful  holder  there- 
of for  any  loss,  damage,  or  injury  to  such  property  caused  by  it  or  by  any 
common  carrier,  railroad,  or  transportation  company  to  which  such  propert.v 
may  be  delivered  or  over  whose  line  or  lines  such  property  may  pass,  and 
no  contract,  receipt,  rule,  or  regulation  shall  exempt  such  common  carrier, 
railroad  or  transportation  company  from  the  liability  hereby  imposed." 

CoxFLTCT  OF  Eaws.— In  The  Kensington,  laS  U.  S."  263,  22  Sup.  Ct.  102.  46 
L.  Ed.  190  (1902).  a  common  carrier,  incorporated  under  the  laws  of  New 
Jersey,  was  held  liable  for  injury  to  baggage  which  occurred  on  the  high  seas 
in  course  of  a  voyage  from  Belgium  to  New  York  because  of  negligent  stow- 
age in  Belgium.  The  carrier  defended  upon  the  ground  that  the  contract  of 
carriage  contained  an  exemption  from  liability  for  neglect  of  vservauts.  valid 
by  the  law  of  Belgium,  and  provided  that  "all  questions  arising  hereunder 
are  to  be  settled  according  to  the  Belgium  law,  with  reference  to  which 
this  contract  is  made."  AYhite.  J.,  said:  "The  contention  amounts  to  this: 
Where  a  contract  is  made  in  a  foreign  country,  to  be  executed  at  least  in 
part  in  the  United  States,  the  law  of  the  foreign  country,  either  by  its  own 
force  or  in  virtue  of  the  agreement  of  the  contracting  parties,  must  be  en- 
forced by  the  courts  of  the  United  States,  even  although  to  do  so  requires 


Ch.  4)  LIMITATION    OF   LIABILITY.  451 


NORTHERN  PAC.  RY.  CO.  v.  ADAMS. 

(Supreme  Court  of  the  United  States,  1904.     192  U.  S.  440,  24  Sup.  Ct.  408, 

48  L.  Ed.  513.) 

Action  under  a  statute  of  Idaho  which  gave  to  heirs  of  persons 
killed  by  the  wrongful  act  or  neglect  of  another  a  right  to  recover 
damages.  The  deceased  was  killed  by  falling  from  a  train  in  mo- 
tion while  passing  from  one  car  to  another.  Further  facts  are  stated 
in  the  opinion.     Plaintiffs  had  a  verdict  and  judgment.     Certiorari. 

Brewer,  J.'*^  *  *  '^  The  company  is  not  under  two  different 
measures  of  obligation — one  to  the  passenger  and  another  to  his  heirs. 
If  it  discharges  its  full  obligation  to  the  passenger,  his  heirs  have 
no  right  to  compel  it  to  pay  damages. 

Did  the  company  omit  any  duty  which  they  owed  to  the  decedent? 
He  was  riding  on  a  pass  which  provided  that  the  company  should 
"not  be  liable,  under  any  circumstances,  whether  of  negligence  of 
agents  or  otherwise,  for  any  injury  to  the  person."  He  was  a  free 
passenger,  paying  nothing  for  the  privilege  given  him  of  riding  in 
the  coaches  of  the  defendant.  He  entered  those  coaches  as  a  licensee, 
upon  conditions  which  he,  with  full  knowledge,  accepted.     *    *     * 

The  rate  of  speed  was  no  greater  than  is  common  on  other  trains 
everywhere  in  the  land,  and  the  train  was,  in  fact,  run  safely  on 
this  occasion.  We  shall  assume,  however,  but  without  deciding,  that 
the  jury  were  warranted,  considering  the  absence  of  the  vestibuled 
platform  and  the  high  rate  of  speed  in  coming  around  the  curve,  in 
finding  the  company  guilty  of  negligence;  but  clearly  it  was  not 
acting  either  willfully  or  wantonly  in  running  its  trains  at  this  not 
uncommon  rate  of  speed,  and  all  that  can  at  most  be  said  is  that  there 
was  ordinary  negligence.  Is  the  company  responsible  for  injuries 
resulting  from  ordinary  negligence  to  an  individual  whom  it  permits 
to  ride  without  charge  on  condition  that  he  take  all  the  risks  of  such 
negligence  ? 

This  question  has  received  the  consideration  of  many  courts,  and 
been  answered  in  different  and  opposing  ways.  We  shall  not  at- 
tempt to  review  the  cases  in  state  courts.     *    *    * 

the  violation  of  the  public  policy  of  the  United  States.  To  state  the  prop- 
osition is,  we  think,  to  answer  it.  It  is  true,  as  a  general  rule,  that  the 
lex  loci  governs,  and  it  is  also  true  that  the  intention  of  the  parties  to  a  con- 
tract will  be  sought  out  and  enforced.  But  both  these  elementary  princi- 
ples are  subordinate  to  and  qualified  by  the  doctrine  that  neither  by  comity 
nor  by  the  Avill  of  contracting  parties  can  the  public  policy  of  a  country  be 
set  at  naught."' 

Contra:  O'Regan  v.  Cunard  Co..  160  Mass.  3.^6.  3.5  N.  E.  1070.  39  Am.  St. 
Rep.  484  (1894).  Compare  Pittsburg,  etc.,  Co.  v.  Sheppard.  .56  Ohio  St.  68,  46 
N.  E.  61.  60  Am.  St.  Rep.  732  (1897);  Hughes  v.  Pa.  Co.,  202  Pa.  222,  51  Atl. 
990.  63  L.  R.  A.  513.  97  Am.  St.  Rep.  713  (1902);  Cleveland,  etc.,  Co.  v. 
Druien,  118  Ky.  237,  80  S.  W.  778,  66  L.  R.  A.  275  (1904).  See  note  in  63  L. 
R.  A.  513. 

4  3  The  statement  of  facts  has  been  rewritten  and  parts  of  the  opinion  omit- 
ted. 


452  EXCEI'TIONAL   LIABILITY   OF   COMMON  CAIUUEU.  (Part  4 

111  Baltimore  &  O.  S.  W.  R.  Co.  v.  Voigt,  176  U.  S.  498,  20  Sup. 
Ct.  385,  44  L.  Ed.  560,  Voigt,  an  express  messenger  riding  in  a  car 
set  apart  for  the  use  of  an  express  company,  was  injured  by  the  neg- 
Hgence  of  the  railway  company.  There  was  an  agreement  between 
the  two  companies  that  the  former  would  hold  the  railway  company 
free  from  all  liability  for  negligence,  whether  caused  by  the  negli- 
gence of  the  railway  company  or  its  employes.  Voigt,  entering  in- 
to the  employ  of  the  express  company,  signed  a  contract  in  writing, 
whereby  he  agreed  to  assume  all  the  risk  of  accident  or  injury  in  the 
course  of  his  employment,  whether  occasioned  by  negligence  or  other- 
wise, and  expressly  ratified  the  agreement  between  the  express  com- 
pany and  the  railway  company.  It  was  held  that  he  could  not  main- 
tain an  action  against  the  railway  company  for  injuries  resulting  from 
the  negligence  of  its  employes. 

j\Ir.  Justice  Shiras,  who  delivered  the  opinion  of  the  court,  re- 
viewed many  state  decisions,  and  concluded  with  these  words  (176  U. 
S.  520,  20  Sup.  Ct.  393,  44  L.  Ed.  570) :  "Without  enumerating  and 
appraising  all  the  cases  respectively  cited,  our  conclusion  is  that  Voigt, 
occupying  an  express  car  as  a  messenger  in  charge  of  express  matter, 
in  pursuance  of  the  contract  between  the  companies,  was  not  a  pas- 
senger within  the  meaning  of  the  case  of  Railroad  Co.  v.  Lockwood 
[ante,  p.  445]  ;  that  he  was  not  constrained  to  enter  into  the  contract 
^vhereby  the  railroad  company  was  exonerated  from  liability  to  him, 
but  entered  into  the  same  freely  and  voluntarily,  and  obtained  the  ben- 
efit of  it  by  securing  his  appointment  as  such  messenger,  and  that  such 
a  contract  did  not  contravene  public  policy."  ** 

44  Shiras,  J.,  also  said:  "It  was  well  said  hy  Sir  George  Jessel.  M.  R.,  in 
Printing  &  N.  Registering  Co.  v.  Sampson,  L.  R.  19  Eq.  4fi5:  'It  must  not  he 
forgotten  that  you  are  not  to  extend  arhitrarily  those  rules  which  say  that 
a  given  contract  is  void  as  being  against  public  policy,  because  if  there  is 
one  thing  whicli  more  than  another  public  policy  requires  it  is  that  men  of 
full  age  and  competent  understanding  shall  have  the  utmost  liberty  of  con- 
tracting, and  that  their  contracts,  when  entered  into  freely  and  voluntarily, 
shall  be  held  sacred,  and  shall  be'  enforced  by  courts  of  justice.  Therefore 
you  have  this  paramount  public  policy  to  consider — that  you  are  not  lightly 
to  interfere  with  this  freedom  of  contract.'  *  *  *  The  relation  of  an  ex- 
press messenger  to  the  transportation  company,  in  cases  like  the  present  one, 
seems  to  us  to  more  nearly  resemble  that  of  an  employe  than  that  of  a 
passenger.  His  position  is  one  created  by  an  agreement  between  the  ex- 
press company  and  the  railroad  company,  adjusting  the  terms  of  a  joint 
business — the  transportation  and  delivery  of  express  matter.  His  duties  of 
personal  control  and  custody  of  the  goods  and  packages,  if  not  performed  by 
an  express  messenger,  would  have  to  be  performed  by  one  in  the  immediate 
service  of  the  railroad  company.  And,  of  course,  if  his  position  was  that  of 
a  common  employe  of  both  companies,  he  could  not  recover  for  injuries 
caused,  as  would  appear  to  liave  been  the  present  case,  by  the  negligence  of 
fellow  servants." 

In  Chicago,  etc.,  Ry.  Co.  v.  Hamler.  215  111.  525,  74  X.  E.  705.  1  L.  R.  A. 
(X.  S.)  ()74.  106  Am.  St.  Rep.  187  (1905),  a  contract  was  held  valid  which  ex- 
empted a  railroad  from  liability  for  negligent  injury  by  its  servants  to  a 
Pullman  porter.  Cartwright,  C.  J.,  said:  "The  defendant  is  a  common  car- 
rier of  passengers,  and  as  to  them  it  assumes  the  duties  and  liabilities  of  a 
common  carrier,  but  the  Pullman  Company  furnishes  special  facilities  and 


Ch.  4)  LIMITATION    OF   LIABILITY.  453 

In  the  light  of  this  decision  but  one  answer  can  be  made  to  the 
question.  The  railway  company  was  not,  as  to  Adams,  a  carrier  for 
hire.  It  waived  its  right  as  a  common  carrier  to  exact  compensa- 
tion. It  offered  him  the  privilege  of  riding  in  its  coaches  without 
charge  if  he  would  assume  the  risks  of  negligence.  He  was  not  in 
the  power  of  the  company  and  obliged  to  accept  its  terms.  They  <tood 
on  an  equal  footing.  If  he  had  desired  to  hold  it  to  its  common-law 
obligations  to  him  as  a  passenger,  he  could  have  paid  his  fare  and  com- 
pelled the  company  to  receive  and  carry  him.  He  freely  and  volun- 
tarily chose  to  accept  the  privilege  offered ;  and,  having  accepted  that 
privilege,  cannot  repudiate  the  conditions.  It  was  not  a  benevolent 
association,  but  doing  a  railroad  business  for  profit;  and  free  pas- 
sengers are  not  so  many  as  to  induce  negligence  on  its  part.  So  far 
as  the  element  of  contract  controls,  it  was  a  contract  which  neither 
party  was  bound  to  enter  into,  and  yet  one  which  each  was  at  liberty 
to  make,  and  no  public  policy  was  violated  thereby. 

It  follows  from  these  considerations  that  there  was  error,  in  the 
proceedings  of  the  Circuit  Court  and  Court  of  Appeals.  The  judg- 
ments of  those  courts  will  be  reversed  and  the  case  remanded  to  the 
Circuit  Court,  with  instructions  to  set  aside  the  verdict  and  grant  a 
new  trial.* ^ 

services  to  passengers,  and  the  defendant  is  not  a  common  carrier  of  Pullman 
cars  and  employes  performing  duties  therein." 

Ace.  Denver,  etc.,  R.  Co.  v.  Whan.  39  Colo.  2.30,  89  Pac.  39,  11  L.  B.  A. 
fX.  S.I  432  (1907).  with  note  collecting  cases;  Griswold  v.  N.  Y.,  etc.,  R.  Co., 
53  Conn.  371,  4  Atl.  261,  55  Am.  Rep.  115  (1885),  newsboy;  Hosmer  v.  Old 
Col.  R.  Co..  156  Mass.  506.  31  N.  E.  652  (1892),  passenger  allowed  to  ride  in 
baggage  car;  Cleveland,  etc.,  R.  Co.  v.  Henry,  170  Ind.  M,  83  N.  E.  710  (1908), 
contract  to  haul  circus.  See  cases  ante,  p.  335,  note.  See,  also,  Mann  v. 
Pere  Marquette  R.  Co.,  135  Mich.  210.  97  N.  W.  721  (1903),  siding  to  lumber 
yard  built  under  release  of  liability  for  fire  caused  by  negligence  in  using  it. 

4s  Harlan  and  McKenna.  JJ..  dissented.  For  cases  accord  and  contra,  see 
Carriers.  9  Cent.  Dig.  §  1253,  4  Dec.  Dig.  §  307  (2).  Compare  Starr  v.  Gt.  No. 
Rv.  Co..  67  Minn.  18.  60  N.  W.  632  (1896),  failure  to  stop  train  as  required 
by  statute;  Chicago,  etc.,  Co.  v.  Lee,  92  Fed.  318,  34  C.  C.  A.  365  (1899),  infant 
passenger. 

In  Kinney  v.  Central  R.  Co..  32  X.  J.  Law.  407.  90  Am.  Dec.  675  (1868). 
Beasley.  C.  J.,  said:  "The  transaction  is  virtually  this:  The  carrier  says  to 
the  passenger:  I  have  employed  careful  and  skillful  men  to  manage  my  lo- 
comotive and  cars  :  but  they  are  human,  and  they  may  fail  in  their  duty,  to  your 
danger.  The  passenger  sa.vs:  In  consideration  of  a  free  passage,  I  will  run 
that  risk.  The  bargain  is  struck  on  these  grounds,  and  I  am  clear  that  it 
would  be  a  great  refinement  to  impeach  it  as  being  prejudicial  to  public  in- 
terests. Nor  do  I  find  such  a  contract  in  any  respect  incompatible  with  legal 
principles  on  analogous  subjects.  Agreements  of  jire  insurance  are  familiar 
instances  much  in  point,  for  they  are,  in  general,  stipulations  for  indemnifica- 
tion against  the  results  of  a  party's  own  negligence  or  that  of  his  employes." 


454  EXCErxroxAL  ltap.ii.ity  of  common  carrier.  (Part  4 

HART  V.  PENNSYLVANIA  R.  CO. 

(Supreme  Court  of  the  United  States,  18^.    112  U.  S.  331,  5  Sup.  Ct  151,  28 

L.  Ed.  717.) 

This  was  an  action  by  a  shipper  against  a  common  carrier  for  breach 
of  a  contract  to  transport  five  horses  from  Jersey  City  to  St.  Louis. 
The  action  was  begun  in  a  state  court  in  Missouri  and  removed  be- 
fore trial  to  a  federal  court.  At  the  trial  the  plaintiff  proved  the  bill 
of  lading  under  which  the  horses  were  carried,  gave  evidence  that 
by  the  negligence  of  the  defendant  one  of  the  horses  was  killed  and 
the  others  injured,  and  offered  to  show  that  the  value  of  the  horse 
killed  was  $15,000,  and  that  the  other  horses,  worth  from  $3,000  to 
$3,500  each,  were  rendered  of  little  value.  The  evidence  of  value  was 
excluded,  upon  the  ground  that  under  the  bill  of  lading  recovery  was 
limited  to  $200  for  each  horse  or  $1,200  for  the  car  load,  and  the  jury 
under  direction  of  the  court  found  a  verdict  for  the  plaintiff  for  $1,- 
200.  The  bill  of  lading  was  signed  by  the  shipper.  Its  relevant  pro- 
visions were  as  follows : 

"Limited  Liability  Live  Stock  Contract  for  United  Railroads  of  New 
Jersey  Division   (No.  206). 

"Jersey  City  Station,  P.  R.  R.,  ,  187—. 

"Lawrence  Hart  delivered  into  safe  and  suitable  cars  of  the  Penn- 
sylvania Railroad  Company,  numbered  M.  L.  224,  for  transportation 
■from  Jersey  City  to  St.  Louis,  Mo.,  live  stock,  of  the  kind  as  fol- 
lows:  One  (1)  car,  five  horses,  shipper's  count;  which  has  been 
received  by  said  company,  for  themselves  and  on  behalf  of  connect- 
ing carriers,  for  transportation,  upon  the  following  terms  and  condi- 
tions, which  are  admitted  and  accepted  by  me  as  just  and  reasonable: 

"First.  To  pay  the  freight  thereon  to  said  company  at  the  rate  of 
ninety-four  (94)  cents  per  one  hundred  pounds  (company's  weight) 
and  all  back  freight  and  charges  paid  by  them,  on  the  condition  that 
the  carrier  assumes  a  liability  on  the  stock  to  the  extent  of  the  fol- 
lowing agreed  valuation:  If  horses  or  mules,  not  exceeding  two 
hundred  dollars  each ;  if  fat  hogs  or  fat  calves,  not  exceeding  fifteen 
dollars  each;  if  sheep,  lambs,  stock  hogs,  or  stock  calves,  not  ex- 
ceeding five  dollars  each ;  if  a  chartered  car,  on  the  stock  and  con- 
tents in  same,  twelve  hundred  dollars  for  the  car  load.  But  no  car- 
rier shall  be  liable  for  the  acts  of  the  animals  themselves,  or  to  each 
other,  such  as  biting,  kicking,  goring,  and  smothering,  nor  for  loss 
or  damage  arising  from  condition  of  the  animals  themselves,  which 
risks,  being  beyond  the  control  of  the  company,  are  hereby  assumed 
by  the  owner,  and  the  carrier  released  therefrom." 

Plaintiff  sued  out  a  writ  of  error. 


Ch.  4)  LIMITATION    OF   LIABILITY.  455 

BlatchFord,  J.*®  *  *  *  It  is  contended  for  the  plaintiff  that 
the  bill  of  lading  does  not  purport  to  limit  the  liability  of  the  defend- 
ant to  the  amounts  stated  in  it,  in  the  event  of  loss  through  the  neg- 
ligence of  the  defendant.  But  we  are  of  opinion  that  the  contract 
is  not  susceptible  of  that  construction.  *  *  *  It  must  be  presumed 
from  the  terms  of  the  bill  of  lading,  and  without  any  evidence  on  the 
subject,  and  especially  in  the  absence  of  any  evidence  to  the  contrary, 
that,  as  the  rate  of  freight  expressed  is  stated  to  be  on  the  condition 
that  the  defendant  assumes  a  liability  to  the  extent  of  the  agreed 
valuation  named,  the  rate  of  freight  is  graduated  by  the  valuation. 

Especially  is  this  so,  as  the  bill  of  lading  is  what  its  heading  states 
it  to  be,  "a.  limited  liability  live  stock  contract,"  and  is  confined  to 
live  stock.  Although  the  horses,  being  race  horses,  may,  aside  from 
the  bill  of  lading,  have  been  of  greater  real  value  than  that  specified 
in  it,  whatever  passed  between  the  parties  before  the  bill  of  lading 
was  signed,  was  merged  in  the  valuation  it  fixed ;  and  it  is  not  asserted 
that  the  plaintiff  named  any  value,  greater  or  less,  otherwise  than  as 
he  assented  to  the  value  named  in  the  bill  of  lading,  by  signing  it. 
The  presumption  is  conclusive  that  if  the  liability  had  been  assumed 
on  a  valuation  as  great  as  that  now  alleged,  a  higher  rate  of  freight 
would  have  been  charged.  The  rate  of  freight  is  indissolubly  bound 
up  with  the  valuation.  If  the  rate  of  freight  named  was  the  only  one 
offered  by  the  defendant,  it  was  because  it  was  a  rate  measured  by 
the  valuation  expressed.  If  the  valuation  was  fixed  at  that  expressed, 
when  the  real  value  was  larger,  it  was  because  the  rate  of  freight 
named  was  measured  by  the  low  valuation.  The  plaintiff  cannot  claim 
a  higher  valuation  on  the  agreed  rate  of  freight. 

It  is  further  contended  by  the  plaintiff'  that  the  defendant  was  for- 
bidden, by  public  policy,  to  fix  a  limit  for  its  liability  for  a  loss  by  neg- 
ligence, at  an  amount  less  than  the  actual  loss  by  such  negligence.  As 
a  minor  proposition,  a  distinction  is  sought  to  be  drawn  between  a 
case  where  a  shipper,  on  requirement,  states  the  value  of  the  prop- 
erty, and  a  rate  of  freight  is  fixed  accordingly,  and  the  present  case. 
It  is  said  that,  while  in  the  former  case  the  shipper  may  be  confined 
to  the  value  he  so  fixed,  in  the  event  of  a  loss  by  negligence,  the  same 
rule  does  not  apply  to  a  case  where  the  valuation  inserted  in  the  con- 
tract is  not  a  vahiation  previously  named  by  the  shipper.  But  we  see 
no  sound  reason  for  this  distinction.  The  valuation  named  was  the 
'■'agreed  valuation,"  the  one  on  which  the  minds  of  the  parties  met, 
however  it  came  to  be  fixed,  and  the  rate  of  freight  was  based  on 
that  valuation,  and  was  fixed  on  condition  that  such  was  the  valu- 
ation, and  that  the  liability  should  go  to  that  extent  and  no  further. 
We  are,  therefore,  brought  back  to  the  main  question.     *     *     * 

As  a  general  rule,  and  in   the  absence  of   fraud  or  imposition,  a 

*6  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opin- 
ion omitted. 


4riG  EXCEPTIONAL   LIADILITY   OF   COMMON  CARRIER.  (Part   4 

common  carrier  is  answerable  for  the  loss  of  a  package  of  goods, 
though  he  is  ignorant  of  its  contents,  and  though  its  contents  are 
ever  so  valuable,  if  he  does  not  make  a  special  acceptance.  This  is 
reasonable,  because  he  can  always  guard  himself  by  a  special  accept- 
ance, or  by  insisting  on  being  informed  of  the  nature  and  value  of 
the  articles  before  receiving  them.  If  the  shipper  is  guilty  of  fraud 
or  imposition,  by  misrepresenting  the  nature  or  value  of  the  articles, 
he  destroys  his  claim  to  indemnity,  because  he  has  attempted  to  de- 
prive the  carrier  of  the  right  to  be  compensated  in  proportion  to  the 
value  of  the  articles  and  the  consequent  risk  assumed,  and  what  he 
has  done  has  tended  to  lessen  the  vigilance  the  carrier  would  other- 
wise have  bestowed.  2  Kent,  Comm.  603,  and  cases  cited;  Relf  v. 
Rapp,  3  Watts  &  S.  (Pa.)  21,  37  Am.  Dec.  528;  Dunlap  v.  Steam- 
boat Co.,  98  Mass.  371;  Railroad  Co.  v.  Fraloflf,  100  U.  S.  21,  25 
L.  Ed.  531.  This  qualification  of  the  liability  of  the  carrier  is  rea- 
sonable, and  is  as  important  as  the  rule  which  it  qualifies.  There  is 
no  justice  in  allowing  the  shipper  to  be  paid  a  large  value  for  an 
article  which  he  has  induced  the  carrier  to  take  at  a  low  rate  of  freight 
on  the  assertion  and  agreement  that  its  value  is  a  less  sum  than  that 
claimed  after  a  loss.  It  is  just  to  hold  the  shipper  to  his  agreement, 
fairly  made,  as  to  value,  even  where  the  loss  or  injury  has  occurred 
through  the  negligence  of  the  carrier.  The  effect  of  the  agreement 
is  to  cheapen  the  freight  and  secure  the  carriage,  if  there  is  no  loss ; 
and  the  effect  of  disregarding  the  agreement,  after  a  loss,  is  to  ex- 
pose the  carrier  to  a  greater  risk  than  the  parties  intended  he  should 
assume.  The  agreement  as  to  value,  in  this  case,  stands  as  if  the  car- 
rier had  asked  the  value  of  the  horses,  and  had  been  told  by  the  plain- 
tiff the  sum  inserted  in  the  contract. 

The  limitation  as  to  value  has  no  tendency  to  exempt  from  liabil- 
ity for  negligence.  It  does  not  induce  want  of  care.  It  exacts  from 
the  carrier  the  measure  of  care  due  to  the  value  agreed  on.  The  car- 
rier is  bound  to  respond  in  that  value  for  negligence.  The  compen- 
sation for  carriage  is  based  on  that  value.  The  shipper  is  estopped 
from  saying  that  the  value  is  greater.  The  articles  have  no  greater 
value  for  the  purposes  of  the  contract  of  transportation  between  the 
parties  to  that  contract.  The  carrier  must  respond  for  negligence 
up  to  that  value.  It  is  just  and  reasonable  that  such  a  contract,  fairly 
entered  into,  and  where  there  is  no  deceit  practiced  on  the  shipper, 
should  be  upheld.     There  is  no  violation  of  public  policy.*'^     On  the 

4  7  "Why  this  reasoniug  as  to  a  compulsory  contract,  contained  in  a  printed 
■bill  of  lading,  shonld  be  applicable  to  a  limitation,  and  not  applicable  to  an 
exemption,  from  liability,  it  would  puzzle  the  most  ingenious  mind  to  con- 
jecture. If  the  carriei"  and  the  shipper  stand  upon  equal  terms,  and  can  make 
a  contract  to  restrict  the  liability  of  the  former  to  the  lowest  limit  of  value, 
without  any  regard  whatever  to  actual  valuation,  why  cannot  the  same  con- 
tracting parties  make  a  contract  for  absolute  exemption?  In  point  of  fact,  to 
limit  is  to  exempt  pro  tanto.  When  a  printed  valuation,  as  in  this  case,  is  set 
upon  all  horses  shipped,  without  any  regard  for  actual  value,  and  the  horse 
is  killed  by  the  negligence  of  the  carrier,  does  not  the  carrier,  by  reason  of 


Ch.  4)  LIMITATION    OF   LIABILITY.  45T 

contrary,  it  would  be  unjust  and  unreasonable,  and  would  be  repug- 
nant to  the  soundest  principles  of  fair  dealing  and  of  the  freedom  of 
contracting,  and  thus  in  conflict  with  public  policy,  if  a  shipper  should 
be  allowed  to  reap  the  benefit  of  the  contract  if  there  is  no  loss,  and 
to  repudiate  it  in  case  of  loss.  This  principle  is  not  a  new  one.  In 
Gibbon  v.  Paynton,  4  Burr.  2298,  the  sum  of  £100  was  hidden  in  some 
hay  in  an  old  nail  bag  and  sent  by  a  coach  and  lost.  The  plaintiff 
knew  of  a  notice  by  the  proprietor  that  he  would  not  be  answerable 
for  money  unless  he  knew  what  it  was,  but  did  not  apprise  the  pro- 
prietor that  there  was  money  in  the  bag.  The  defense  was  upheld, 
Lord  Mansfield  saying:  "A  common  carrier,  in  respect  of  the  pre- 
mium he  is  to  receive,  runs  the  risk  of  the  goods  and  must  make  good 
the  loss,  though  it  happen  without  any  fault  in  him,  the  reward  making 
him  answerable  for  their  safe  delivery.  His  warranty  and  insurance 
is  in  respect  of  the  reward  he  is  to  receive,  and  the  reward  ought  to 
be  proportionable  to  the  risk.  If  he  makes  a  greater  warranty  and 
insurance  he  will  take  greater  care,  use  more  caution,  and  be  at  the 
expense  of  more  guards  or  other  methods  of  security,  and  therefore  he 
ought,  in  reason  and  justice,  to  have  a  greater  reward."  To  the  same 
effect  is  Batson  v.  Donovan,  4  Barn.  &  Aid.  21. 

The  subject-matter  of  a  contract  may  be  valued,  or  the  damages 
in  case  of  a  breach  may  be  liquidated,  in  advance.  In  the  present  case, 
the  plaintiff  accepted  the  valuation  as  "just  and  reasonable."  The 
bill  of  lading  did  not  contain  a  valuation  of  all  animals  at  a  fixed  sum 
for  each,  but  a  graduated  valuation  according  to  the  nature  of  the  ani- 
mal. It  does  not  appear  that  an  unreasonable  price  would  have  been 
charged  for  a  higher  valuation.  The  decisions  in  this  country  are 
at  variance.  The  rule  which  we  regard  as  the  proper  one  in  the  case 
at  bar  is  supported  in  Newburger  v.  Howard,  6  Phila.  174 ;  Squire 
V.  New  York  Cent.  R.  Co.,  98  Mass.  239,  93  Am.  Dec.  162;  Hopkins 
V.  Westcott,  6  Blatchf .  64,  Fed.  Cas.  No.  6,692 ;  Belger  v.  Dinsmore, 
51  N.  Y.  166,  10  Am.  Rep.  575;  Oppenheimer  v.  U.  S.  Exp.  Co. 
[ante,  p.  400]  ;  Magnin  v.  Dinsmore,  56  N.  Y.  168,  and  Id.,  62  N. 
Y.  35,  20  Am.  Rep.  442,  and  Id.,  70  N.  Y.  410,  26  Am.  Rep.  608; 
Earnest  v.  Express  Co.,  1  Woods,  573,  Fed.  Cas.  No.  4,248 ;  Elkins 
V,  Empire  Transportation  Co.,  *81  Pa.  315 ;  South  &  North  Ala. 
R.  Co.  V.  Henlein,  52  Ala.  606,  23  Am.  Rep.  578  [post,  p.  465,  note  53]  ; 
Same  v.  Same,  56  Ala.  368  ;  Muser  v.  Holland,  17  Blatchf.  412,  1  Fed. 
382;  Harvey  v.  Terre  Haute  R.  Co.,  74  Mo.  538;  and  Graves  v.  Lake 
Shore  Ry.  Co.,  137  Mass.  33,  50  Am.  Rep.  582.  The  contrary  rule  is 
sustained  in  Southern  Exp.  Co.  v.  Moon,  39  Miss.  822  ;  The  City  of 
Norwich,  4  Ben.  271,  Fed.  Cas.  No.  2,761 ;  U.  S.  Exp.  Co.  v.  Backman, 

this  so-called  contract,  exempt  himself  from  liability  so  far  as  the  true  val- 
ue of  the  horse  may  prove  to  be  above  the  artificial  printed  valuation  of  the 
bill  of  lading,  which  is  fixed  by  the  company,  and  to  which  the  shipper  must 
submit  or  not  ship  at  all?"  Laieas,  J.,  dissenting,  in  Zouch  v.  Chesapeake  6c 
O.  Ry.  Co.,  36  W.  Va.  524,  15  S.  E.  185,  17  L.  R.  A.  116  (1892). 


458  EXCErTIOXAL   LIARILITY   OF   COMMON  CARRIER.  (Part  4 

28  Ohio  St.  144;  Black  v.  Goodrich  Transp.  Co.,  55  Wis.  319,  13  N. 
W.  244,  42  Am.  Rep.  713 ;  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Abels, 
60  Miss.  1017;  Kansas  City  R.  Co.  v.  Simpson,  30  Kan.  645,  2  Pac. 
821,  46  Am.  Rep.  104;  and  Moulton  v.  St.  Paul,  etc.,  R.  Co.,  31  Minn. 
85,  16  N.  W.  497,  47  Am.  Rep.  781.  We  have  given  consideration 
to  the  views  taken  in  these  latter  cases,  but  are  unable  to  concur  in 
their  conclusions. 

Applying  to  the  case  in  hand  the  proper  test  to  be  applied  to  every 
limitation  of  the  common-law  liability  of  a  carrier — its  just  and  rea- 
sonable character — we  have  reached  the  result  indicated.  In  Great 
Britain,  a  statute  directs  this  test  to  be  applied  by  the  courts.  The 
same  rule  is  the  proper  one  to  be  applied  in  this  country,  in  the  ab- 
sence of  any  statute.  *  *  *  The  distinct  ground  of  our  decision 
in  the  case  at  bar  is  that,  where  a  contract  of  the  kind,  signed  by  the 
shipper,  is  fairly  made,  agreeing  on  a  valuation  of  the  property  car- 
ried, with  the  rate  of  freight  based  on  the  condition  that  the  car- 
rier assumes  liability  only  to  the  extent  of  the  agreed  valuation,  even 
in  case  of  loss  or  damage  by  the  negligence  of  the  carrier,  the  contract 
will  be  upheld  as  a  proper  and  lawful  mode  of  securing  a  due  pro- 
portion between  the  amount  for  which  the  carrier  may  be  responsi- 
ble and  the  freight  he  receives,  and  of  protecting  himself  against  ex- 
travagant and  fanciful  valuations.  Squire  v.  New  York  Cent.  R.  Co. 
98  Alass.  239,  245,  93  Am.  Dec.  162,  and  cases  there  cited. 

There  was  no  error  in  excluding  the  evidence  offered,  or  in  the 
charge  to  the  jury,  and  the  judgment  of  the  Circuit  Court  is  affirm- 
ed." 

*8  "We  know  of  no  rnle  of  law,  and  no  settled  pnblic  policy,  which  forbids 
a  shipper  from  settling  by  contract  what  shall  be  the  measure  of  damages  he 
may  be  entitled  to  claim  in  case  of  loss  of  the  article  shipped.  What  is  the 
value  of  a  given  article  is  a  pure  question  of  evidence,  with  which  the  law 
has  nothing  to  do;  and  we  see  no  reason  why  parties  may  not,  by  special 
contract,  agree  to  dispense  with  the  necessity  for  ofCeriug  testimony  as  to  the 
value  of  such  article,  just  as  they  may,  by  agreement  or  admission,  dispense 
with  the  necessity  for  offering  testimony  as  to  any  other  fact  material  to  a  con- 
troversv."  Mclver,  J.,  in  .Tohnstone  v.  Richmond,  etc.,  R.  Co.,  39  S.  C.  50,  17 
S.  E.  .^>12  (18.93).    Ace.  Louisville  &  N.  R.  Co.  v.  Sherrod.  84  Ala.  ITS,  4  South. 

29  (18S7);  Ga.  So.  Ry.  Co.  v.  Johnson,  121  Ga.  231,  48  S.  E.  807  (1904). 

"If  public  policy  forbids  enforcement  of  a  contract  of  exemption,  when  loss 
is  occasioned  by  negligence  it  logically  requires  full,  not  partial,  measure  of 
compensation  to  the  owner  of  goods  so  lost  or  destroyed.  It  seems  to  us  a 
common  carrier  cannot  be  injured  or  mifairly  dealt  with  if  simply  required  in 
the  usual  course  of  business  to  deliver  the  goods  at  the  place  of  destination, 
or  account  to  the  shipper  for  their  full  value  in  case  he,  in  violation  of  his 
contract,  and  by  his  own  negligence  or  that  of  his  servants,  has  lost  or  de- 
stroyed them ;  for  if  the  goods  are  of  high  value,  or  the  owner  or  bailor  shall 
fix  a  high  value  upon  them,  it  is  always  competent  for  the  carrier  or  bailee 
to  use  care  and  expense,  and  then  demand  compensation  for  their  carriage 
proportional  to  such  value."  Lewis,  J.,  in  Baughman  v.  Louisville,  etc..  R. 
Co.,  94  Ky.  150,  21  S.  W.  757  (1893).  Ace.  Weiller  v.  Pa.  R.  Co..  134  Pa.  310, 
19  Atl.  702,  19  Am.  St.  Rep.  700  (1890);  Cincinnati,  etc.,  Co.'s  Receiver  v. 
Graves,  52  S.  W.  961,  21  Ky.  Law  Rep.  684  (1899). 

In  So.  Ry.  Co.  v.  Jones,  132  Ala.  437,  31  South.  501  (1902),  McClellan,  C. 
J.,  speaking  of  an  agreement  limiting  liability  to  $100,  said:    "The  question  is 


Ch.  4)  LIMITATION    OF   LIABILITY.  459 

O'^IALLEY  V.  GREAT  NORTHERN  RY.  CO. 

(Supreme  Court  of  Minnesota,  1902.    86  Minn.  3S0,  90  N.  W.  974.) 

Brown,  J.  Action  to  recover  the  value  of  a  horse  whose  death  is 
alleged  to  have  been  caused  by  the  negligence  of  defendant  in  trans- 
porting the  same,  with  other  horses,  over  its  line  of  railway.  Plain- 
tiff had  a  verdict  in  the  court  below,  and  defendant  appeals  from  an 
order  denying  a  new  trial. 

The  facts  are  as  follows :  Plaintiff  delivered  to  defendant  a  car 
load  of  20  horses  to  be  transported  from  jMorris,  this  state,  to  Fox- 
boro,  in  the  state  of  Wisconsin.  Before  reaching  the  destination, 
one  of  the  horses  was  killed,  by  reason,  as  plaintiff  alleges,  of  the  neg- 
ligent manner  in  which  the  car  containing  the  horses  was  managed  by 
the  servants  of  defendant.  The  shipment  of  the  horses  was  under 
the  terms  of  a  bill  of  lading  or  shipping  contract  in  which  appears 
the  following  stipulation,  among  others,  namely:  "This  agreement, 
made  and  entered  into  the  day  above  stated  between  the  Great  North- 
ern Railway  Company  of  the  first  part,  and  Tom  O'Malley  of  the  sec- 
ond part,  witnesseth :  That  the  said  railway  company  has  received 
from  said  second  party  one  car  load  of  horses,  to  be  transported  from 
Morris,  Minn.,  station  to  Foxboro  station,  at  the  published  tariff  rate, 
the  same  being  a  reduced  rate,  given  subject  to  the  regulations  printed 
at  the  heading  of  this  agreement,  and  upon  the  terms  and  conditions 
following,  which  are  admitted  and  accepted  by  the  undersigned  ship- 
pers as  just  and  reasonable;  that  is  to  say,  *  *  *.  And  it  is  hereby 
further  agreed  that  the  value  of  the  live  stock  to  be  transported  under 
this  contract  does  not  exceed  the  following  mentioned  sums :  Each 
horse,  fifty  dollars.  Such  valuation  being  that  whereon  the  rate  of 
compensation  to  the  railway  company  for  its  services  and  risk  con- 
nected with  said  property  is  based.  The  party  of  the  first  part  does 
hereby  declare  that  this  contract  was  made  and  entered  into  by  it  re- 
lying upon  the  declaration  of  the  party  of  the  second  part  that  the 
valuations  above  given  are  the  just  and  true  values  of  such  live  stock, 
and  the  party  of  the  second  part  agrees  and  declares  that  such  valu- 
ations are  the  just  and  true  values  of  such  live  stock,  and  understands 
and  agrees  that  the  party  of  the  first  part  entered  into  the  contract 

not  what  the  parties  knew  or  intenfletl.  but  what  is  the  effect  of  the  stipu- 
hition ;  not  whether  the  parties  intended  evil,  or  I<new  their  act  was  hurt- 
ful, to  the  public,  but  whether  to  allow  and  uphold  such  contracts  would  be 
fraught  with  wrong  and  injury  to  the  people  of  a  character  from  which  it 
is  the  province  and  duty  of  jxovernment  to  protect  them.  So  it  is  immaterial, 
■when  a  caiTier  has  stipulated  for  a  limitation  of  damages  resulting  from  his 
negligence  to  a  greatly  disproportionately  small  valuation  of  the  property 
carried,  whetlier  he  knew  or  was  informed  of  its  real  value  or  not.  It 
is  against  the  public  good  that  he  should  be  allowed  to  make  such  stipula- 
tions under  any  circumstances.     *     *     * " 

See.  also.  So.'  Ex.  Co.  v.  Owens.  146  Ala.  412.  41  South.  7-52,  8  L.  R.  A.  (N. 
S.)  .369,  119  Ajn.  St.  Rep.  41  (1906j,  and  cases  cited  21  Harv.  Law  Rev.  41, 
note  1. 


400  EXCErXIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

relying  that  such  vahies  so  given  are  the  just  and  true  values  of  such 
live  stock."  The  action  was  brought  to  recover  the  sum  of  $125  as 
the  value  of  the  horse,  and  the  defense  was:  (1)  That  defendant  was 
not  guilty  of  negligence;  (2)  that  plaintiff's  negligence  in  respect 
to  the  manner  of  loading  and  caring  for  the  horses  during  transporta- 
tion was  the  cause  of  the  death  of  the  horse  in  question;  and  (3)  that 
plaintiff  is  limited  in  the  amount  of  his  recovery,  if  entitled  to  recover 
at  all,  to  the  sum  stipulated  in  the  contract  as  the  value  of  the  horse, 
viz.,  $50. 

It  is  the  generally  accepted  doctrine  of  the  courts  that  a  common 
carrier  may,  by  express  contract,  limit  his  common-law  liability;  and 
contracts  entered  into  for  that  purpose,  when  not  intended  solely  as 
an  exemption  from  negligence  of  the  carrier  or  his  servants,  and 
when  otherwise  just  and  reasonable,  are  very  generally  sustained. 
Ray,  Neg.  Imp.  Duties,  3-i  .et  seq. ;  5  Am.  &  Eng.  Enc.  Law  (2d  Ed.) 
288.  If,  however,  the  purpose  of  such  contracts  be  merely  to  place  a 
limit  on  the  amount  for  which  the  carrier  shall  be  liable,  then  as  to  loss- 
es resulting  from  his  negligence  such  limitation  is  not  deemed  just  or 
reasonable,  and  is  not  binding;  but,  on  the  other  hand,  if  the  limitation 
as  to  the  value  of  the  property  be  fairly  and  honestly  made  as  the 
basis  of  the  carrier's  charges  and  responsibility,  it  is  upheld  as  a  just 
and  reasonable  mode  of  securing  a  due  proportion  between  what  the 
carrier  may  be  responsible  for  and  the  compensation  he  receives,  and 
to  protect  himself  from  extravagant  and  fanciful  valuations,  whether 
subsequent  loss  occurs  through  the  carrier's  negligence  or  not.  The 
law  on  this  subject  is  very  clearly  stated  in  Alair  v.  Railway  Co.,  53 
Alinn.  160,  54  N.  W.  1072,  19  L.  R.  A.  764,  39  Am.  St.  Rep.  588. 

The  contract  involved  in  the  case  at  bar  is  very  explicit,  and  clearly 
comes  within  the  rule  laid  down  in  that  case.  It  was  prepared  by 
the  agent  of  defendant,  and  presented  to  plaintiff  for  his  signature. 
He  signed  it,  and  the  agent  delivered  to  him  the  original,  or  a  dupli- 
cate, which  he  retained.  It  is  claimed  from  this  that  plaintiff  is  con- 
clusively presumed  to  have  assented  to  the  terms  and  provisions  of 
the  contract,  and  is  bound  thereby.  The  cases  sustaining  contracts  of 
this  kind  as  valid  and  binding  upon  the  shipper  all  hold  that  the  con- 
tract in  respect  to  limitations  as  to  the  value  of  the  property  must  ap- 
pear to  have  been  fairly  entered  into,  and  as  a  basis  for  the  carrier's 
charges  and  responsibility;  and  where  the  shipper  shows  by  compe- 
tent evidence  to  the  contrary  that  he  was  not  aware  of  the  provi- 
sions of  the  contract  in  that  respect,  and  that  the  contract  was  not 
fairly  made,  and  for  the  purpose  of  furnishing  a  basis  for  the  car- 
rier's charges  and  responsibility,  he  is  not  bound  thereby.  Rosenfeld 
V.  Railway  Co.,  103  Ind.  121,  2  N.  E.  344,  53  Am.  Rep.  500;  Coup- 
land  V.  Railway  Co.,  61  Conn.  531,  23  Atl.  870,  15  L.  R.  A.  534;  Rail- 
way Co.  V.  Simpson,  30  Kan.  645,  2  Pac.  821,  46  Am.  Rep.  104;  Rail- 
way Co.  V.  Clark.  48  Kan.  321,  329,  29  Pac.  312.  The  construction 
of  contracts  of  this  kind,  the  nature  and  extent  of  the  obligations 


Ch.  4)  LIMITATION    OF   LIABILITY.  4G1 

created  thereby,  and  what  the  parties  intended  by  the  language  em- 
ployed, must,  when  clear  and  unambiguous,  be  determined  from  the 
writing  itself;  and  extrinsic  evidence  is  inadmissible  to  contradict  or 
vary  the  same. 

But  the  question  in  the  case  at  bar  is  not  what  the  contract  may  be 
construed  to  be  by  its  language,  for  there  is,  and  can  be,  no  contro- 
versy on  that  subject.  The  language  is  clear  and  free  from  doubt, 
and  brings  the  case  fairly  within  the  class  of  contracts  the  courts  sus- 
tain. The  question  involved  is,  was  the  contract,  as  executed  and 
signed  by  plaintiff,  as  respects  the  limitation  placed  on  the  value  of 
the  horses,  assented  to  by  him?  Was  the  limitation  placed  therein 
fairly  and  in  good  faith,  and  was  the  value  so  purported  to  have  been 
agreed  upon  by  the  parties  intended  as  a  basis  for  determining  the 
freight  charges  and  defendant's  responsibility?  In  determining  this 
question  we  are  not  controlled  by  the  language  of  the  contract;  and, 
though  it  is  clear  and  unambiguous,  and  prima  facie  what  it  purports 
to  be,  the  question  whether  it  was  made  and  entered  into  understand- 
ingly  and  in  good  faith  for  the  purposes  stated,  and  so  as  to  con- 
stitute a  contract  at  all,  must  be  determined  from  the  facts  and  cir- 
cumstances surrounding  its  execution.  For  the  purpose  of  showing 
that  plaintiff  did  not  assent  or  agree  to  the  terms  of  the  contract,  ex- 
trinsic evidence  was  admissible,  not  to  contradict  or  vary  its  express 
terms,  but  to  show  whether  it  was  fairly  and  honestly  entered  into 
in  respect  to  this  particular  subject.  Boorman  v.  Express  Co.,  21  Wis. 
152;  King  v.  Woodbridge,  34  Vt.  565;  Madan  v.  Sherard  [ante.  p. 
415]  ;  Black  v.  Railway  Co.,  Ill  111.  352,  53  Am.  Rep.  628 ;  Trans- 
portation Co.  v.  Dater,  91  111.  195,  33  Am.  Rep.  51 ;  Despatch  Co.  v. 
Leysor,  89  111.  43  ;  Field  v.  Railway  Co.,  71  111.  458 ;  Boscowitz  v. 
Express  Co.,  93  111.  523,  34  Am.  Rep.  191. 

The  learned  trial  court  submitted  the  case  to  the  jury  on  this  theory 
of  the  law,  and  they  found  that  the  stipulation  as  to  the  value  of  the 
property  was  not  included  in  the  contract  as  a  fair  valuation  fixed  by 
agreement  of  the  parties  as  a  basis  for  freight  charges,  and  returned 
'a  verdict  for  plaintiff  for  the  sum  claimed  in  the  complaint,  namely, 
$125.  Whether  the  evidence  was  sufficient  to  sustain  the  verdict  of 
the  jury  is  the  serious  question  in  the  case.  Perhaps  a  strong  case 
for  plaintiff  was  not  made  out,  but  the  evidence  fairly  and  reasonably 
tends  to  support  the  verdict  of  the  jury,  and  is  not  so  clearly  and  pal- 
pably against  it  as  to  justify  interference  by  this  court.  Plaintiff  had 
loaded  his  horses  into  the  car,  and  they  were  ready  for  shipment, 
before  the  contract  was  presented  to  him  for  his  signature.  A  short 
time  before  the  departure  of  the  train — about  10  o'clock  at  night — 
plaintiff  paid  defendant's  agent  the  freight  charges,  whereupon  the 
agent  presented  him  the  contract  in  question,  which  he  signed  with- 
out reading  or  knowing  its  contents.  There  were  no  previous  nego- 
tiations between  the  parties  in  reference  to  what  the  contract  should 
•contain.     No  inquiry  was   made  of  plaintiff'  as  to  the  value  of  the 


462  EXCErTIOXAL    LIABILITY    OF   COMMON   CAIUUER.  (Part  4 

horses,  and  no  representations  were  made  by  him  in  respect  thereto. 
He  was  not  informed  that  it  was  necessary  that  the  company  know 
the  vakie  in  order  to  enable  it  to  determine  the  rate  of  freight  to  be 
charged  for  the  transportation  of  the  horses;  and  it  afifirmatively 
appears  that  their  vakie  was  inserted  in  the  contract  by  the  agent 
himself,  of  his  own  motion,  without  consultation  with  plaintiff,  and  in 
accordance  with  his  own  estimate  of  the  value  of  horses  in  general. 
There  is  no  claim  that  the  freight  charges  for  shipment  were  in  any 
way  based  upon  this  valuation,  nor  that  charges  would  have  been  any 
higher  had  the  value  been  greater.  We  are  of  opinion  that  the  evi- 
dence made  a  case  for  the  jury.  Railway  Co.  v.  Brady,  32  Md.  333. 
See,  also,  cases  cited  supra.  The  precise  question  here  presented  was 
not  involved  in  Hutchinson  v.  Railway  Co.,  37  Minn.  534,  35  N.  W. 
433. 

We  have  examined  the  evidence  upon  the  other  questions  in  the 
case — whether  defendant  was  chargeable  with  actionable  negligence, 
and  whether  plaintift"s  negligence  contributed  to  cause  the  injury  com- 
plained of — and  conclude  that  the  questions  were  properly  submitted 
to  the  jury,  and  their  verdict  must  be  sustained. 

Order  affirmed.** 


CENTRAL  OF  GEORGIA  RY.  CO.  v.  HALE. 

(Supreme  C-ourt  of  Georgia,  1905.    124  Ga.  322,  52  S.  E.  679,  4  L.  R.  A.  [N.  S.] 
898,  110  Am.  St.  Key.  170.) 

Lumpkin,  J.^"  *  *  *  ^^  j^  ^^^3  contended  that  under  the  con- 
tract the  defendant  was  not  liable  for  the  value  of  the  horse  beyond 
the  sum  of  $125.  Was  the  contract  relied  on  by  the  defendant  an 
actual  bona  fide  agreement  as  to  the  value  of  the  property  lost,  or 
was  it  a  mere  general  limitation  as  to  value,  amounting  to  an  arbi- 
trary preadjustment  of  damages?  The  former  would  be  valid;  the 
latter  not.  Central  Ry.  Co.  v.  Murphey,  113  Ga.  514,  38  S.  E.  970, 
53  L.  R.  A.  720;  Georgia  R.  Co.  v.  Keener,  93  Ga.  808,  21  S.  E.  287, 
44  Am.  St.  Rep.  197;  Georgia  Southern  Ry.  Co.  v.  Johnson,  121  Ga. 
231,  48  S.  E.  807.     The  contract,  which  was  included  in  the  bill  of 

49  Contra:  Johnstone  v.  Richmond,  etc.,  R.  Co.,  39  S.  C.  .j(5.  17  S.  E.  512 
(1892).  In  this  case  Mclver,  J.,  said:  "We  do  not  understand  that  it  is  ci in- 
tended that  the  shipper  was  induced  to  sigu  the  contract  by  any  misrepre- 
sentation on  the  part  of  the  carrier  or  his  agent,  for  there  is  not  a  particle 
of  evidence  to  sustain  such  a  contention.  But  the  ground  seems  to  be  that 
the  agent  of  the  carrier  did  not  have  the  contract  ready  for  the  shipper's 
signature  until  he  went  to  the  ofhee  to  get  his  ticlcet  to  enable  him  to  leave 
on  the  passenger  train,  when  he  signed  the  contract  hurriedly,  and  without 
reading  it.  AYe  do  not  think  that  this  was  sufiicient  to  excuse  noncompliance 
with  the  terms  of  the  contract.  The  shipper  was  not  obliged  to  sign  the  con- 
tract Avithout  reading  it,  and  if  he  saw  fit  to  do  so  he  must  take  the  conse- 
quences." 

50  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Ch.  4)  LIMITATION    OF   LIABILITY.  463 

affreightment  and  signed  by  the  agent  of  the  owner  and  the  agent  of 
the  company,  contained  the  following  provision :  "And  it  is  further 
agreed  that  should  any  damage  occur  for  which  the  company  may  be 
liable,  the  value  at  the  place  and  date  of  shipment  shall  govern  the 
settlement,  in  which  the  amount  claimed  shall  not  exceed,  for  a  stal- 
lion or  jack,  $200,  for  a  horse  or  mule,  $125,  cattle  $iO,  other  ani- 
mals, $20."  This  was  upon  a  printed  blank  containing  these  amounts 
already  prepared.  It  did  not  purport  to  put  a  valuation  upon  the 
particular  horse  or  horses  shipped,  but  limited  the  amount  to  be 
claimed  for  any  horse,  regardless  of  its  real  or  estimated  value,  to 
$125.  It  had  a  prearranged  amount  to  which  its  liability  should  be 
limited  as  to  various  animals. 

If  this  could  be  treated  as  a  bona  fide  estimate  or  valuation  as  to 
the  horse  which  was  killed,  it  might  equally  be  said  to  be  a  valuation 
of  every  possible  horse  which  might  be  shipped,  before  it  was  ever 
seen  or  heard  of  by  the  company's  agent. ^^  The  expression  "other 
animals  $20"  would  thus  be  treated  as  being  a  bona  fide  valuation  of 
any  other  animal,  regardless  of  what  was  its  nature,  character,  or  ac- 
tual value.  A  rabbit,  a  hog,  or  an  elephant  might  equally  fall  under 
the  designation  of  "other  animals,"  and  the  arbitrary  limitation  of 
$20  would  apply  equally  to  each  of  them.  Moreover  it  will  be  noticed 
that,  in  case  of  loss,  the  company  does  not  agree  that  the  value  of 
the  horse  shall  be  fixed  at  $125,  but  the  agreement  is  that  "the  amount 
claimed  shall  not  exceed"  that  sum.  This  was  clearly  an  attempt  to 
limit  the  liability,  not  to  determine  value.  As  was  said  in  the  opinion 
in  Central  Ry,  Co.  v.  Alurphey:  "Could  any  fair  and  reasonable  mind 
ever  reach  the  conclusion  that  there  was  between  the  plaintiffs  and  the 
defendant  any  agreement  at  all  respecting  the  value  of  this  particular 
car  load  of  grapes,  or  that  there  was  even  a  remote  intention  to  make 
such  an  agreement?" 

5.  Should  the  presiding  judge  have  submitted  the  question  to  the 
jury  to  decide  as  to  whether  this  contract  amounted  to  an  actual  bona 
fide  valuation?  On  its  face,  it  did  not  do  so.  Outside  of  the  paper, 
there  was  no  evidence  of  any  actual  valuation  of  this  particular  horse. 
It,  with  several  others,  was  delivered  to  the  railroad  company  together 
with  certain  sulkies,  which  seems  to  have  indicated  that  the  horses 
were  to  be  used  otherwise  than  as  common  draft  animals.  Eight 
horses  were  also  shipped  in  two  cars,  and  an  attendant  went  with 
them.  No  inquiry  was  made  as  to  their  nature  or  value.  The  com- 
pany had  two  kinds  of  blanks,  one  for  use  where  live  stock  was  ship- 
ped "released,"  the  other  where  it  was  not.  An  agent  of  the  defend- 
ant asked  the  plaintiff's  agent  if  he  wished  to  ship  the  horses  "re- 
leased," and,  upon  receiving  an  affirmative  answer,  filled  one  of  the 
blanks,  except  as  to  the  rate,  which  was  filled  in  by  the  rate  clerk. 

Bi  Ace.  Chicaso,  etc..  Ry.  Co.  v.  Chapman,  133  111.  96,  24  N.  E.  417,  8  L.  R. 
A.  508,  23  Am.  St.  Rep.  587  (1890). 


464  EXCErXIONAL    LIARILITY    OF    COMMON   CAUIIIER.  (Part    4 

There  is  only  one  "release  rate"  for  horses.  The  rate  clerk  has  the 
classification  of  the  state  railroad  commission,  and  fills  in  the  rate 
that  belongs  to  that  agreement. 

A  witness  for  the  defendant  testified  that  the  rate  was  fixed  at  $'-37 
per  car  between  the  points  included  in  the  transportation,  "based  on 
the  valuation  of  $125,"  but  he  admitted  that  nothing  was  said  to  the 
shipper  as  to  valuation.  This  was  the  entire  transaction.  True,  the 
shipper  admitted  that  he  knew  that  if  he  had  named  a  higher  valua- 
tion on  the  horses  he  would  have  had  to  have  paid  a  higher  rate,  and 
that  if  he  had  not  shipped  "released"  the  rate  would  have  been  much 
higher.  But  there  was  nothing  in  what  transpired  between  the  par- 
ties to  show  a  bona  fide  effort  to  fix  a  value  on  the  horse  which  was 
killed,  or  on  any  one  or  all  of  the  horses.  Every  shipper  who  is  asked 
whether  he  will  ship  "released"  probably  knows  that  if  he  does  not 
do  so  the  rate  will  be  higher.  But  this  does  not  change  an  effort  to 
hmit  liability  into  an  actual  valuation  of  property. 

The  construction  of  the  contract  made  in  this  case  is  controlled  by 
the  decisions  in  Georgia  R.  Co.  v.  Keener,  supra,  and  Central  Ry.  Co. 
V.  Murphey,  supra.  The  decision  in  Southern  Railway  Co.  v.  Horner, 
115  Ga.  381,  il  S.  E.  649,  is  cited  to  sustain  the  contention  that  the 
case  should  have  been  submitted  to  the  jury.  In  that  case  it  is  stated, 
in  the  report  of  facts,  that  "the  testimony  was  in  direct  conflict  as 
to  the  making  of  a  special  contract  of  shipment,  *  *  *  and  that 
Lee  [the  defendant's  agent]  gave  him  a  rate  based  on  a  valuation 
of  $100  for  the  horse,  and  explained  to  him  that  the  tariff  required 
an  addition  of  fifty  per  cent,  for  each  additional  $100  of  valuation." 
The  contract  contained  the  following  terms :  "The  said  shipper  or 
the  consignee  is  to  pay  freight  thereon  to  the  said  carrier  at  the  rate 

of  — ■ per  — ,  which  is  the  lower  published  tariff  rate,  based 

upon  the  express  condition  that  the  carrier  assumes  liability  on  the 
said  live  stock  to  the  extent  only  of  the  following  agreed  valuation, 
upon  which  valuation  is  based  the  rate  charged  for  the  transporta- 
tion of  the  said  animals,  and  beyond  which  valuation  neither  the  said 
carrier  nor  any  connecting  carrier  shall  be  liable  in  any  event.  *  *  * 
If  horses  or  mules,  not  exceeding  100,  $100  each."  It  was  held  that, 
under  the  terms  of  this  contract  and  the  evidence  introduced,  an  is- 
sue was  made  as  to  whether  in  fact  there  was  a  valuation  or  an  arbi- 
trary preadjustment  of  damages,  and  that  this  was  properly  submitted 
to  the  jury.^' 

5  2  In  J.  J,  Douglas  Co.  v.  Minn.,  etc..  Ey.  Co.,  02  Minn.  288,  64  N.  W.  890, 
30  L.  11.  A.  860  (1895),  Mitchell,  J.,  said:  "Tlie  agreed  facts  do  not  state  that 
the  carrier  knew  that  the  value  of  the  goods  was  greater  than  that  fixed  on 
them  by  the  shipper.  But  it  is  fair  to  presume  that,  if  the  carrier  thought 
of  the  matter  at  all,  it  had  good  reason  to  suppose  that,  if  the  property  was 
what  it  puiijorted  to  be,  it  was  worth  more  than  $20  per  barrel.  But  we  do 
not  think  that  this,  if  true,  would  be  at  all  material,  inasmuch  as  the  valua- 
tion was  one  voluntarily  fixed  and  agreed  to  by  the  shipper  as  the  basis  upon 


Ch.  4)  LIMITATION    OF   LIABILITY.  465 

The  difference  between  submitting  to  the  jury  to  determine,  under 
the  evidence,  whether  terms  of  this  character  inserted  in  a  contract 
of  affreightment  constituted  a  bona  fide  and  actual  vakiation  or  a  mere 
preadjustment  of  damages,  and,  on  the  other  hand,  submitting  to  the 
jury  the  construction  of  the  contract  alone,  which  plainly  on  its  face 
was  not  a  valuation,  but  an  effort  to  limit  damages,  is  clear.    *    *    * 

A  consideration  of  all  the  grounds  of  the  motion  for  a  new  trial 
satisfies  us  that  there  were  no  errors  requiring  a  reversal.  Judgment 
affirmed. ^^ 

which  the  can-ier's  compensation  as  well  as  responsibility  should  be  determin- 
ed and  adjusted." 

Ace.  Jennings  v.  Smith  (C.  C.)  99  Fed.  189  (1900)  shipper  informed  carrier 
that  agreed  value  was  too  low. 

Contra:  Overland  Mail,  etc.,  Co.  v.  Carrol,  7  Colo.  43,  1  Pac.  6.82  (1883); 
U.  S.  Ex.  Co.  V.  Bachman,  28  Ohio  St.  144  (1875).  And  see  21  Harv.  Law 
Rev.  38-43,  46. 

53  Ace.  So.  Ex.  Co.  V.  Moon,  39  Miss.  822  (18C.3);  Moulton  v.  St.  Paul,  etc., 
Ry.  Co..  31  Minn.  85,  16  N.  W.  497.  47  Am.  Rep.  781  (18831 ;  Doan  v.  St.  Louis, 
etc..  Rv.  Co..  38  Mo.  App.  408  (1889);  Schwarzchild  v.  Nat.  S.  S.  Co.  (D.  C.)  74 
Fed.  257  (1890). 

"We  have  had  much  ditiiculty  in  determining  the  validity  of  the  stipulation 
in  the  contract  that,  if  loss  or  injury  should  occur  for  which  the  company  is 
liable,  the  amount  claimed  should  not  exceed  $50  for  any  one  of  the  animals. 
If  the  measure  of  the  liability  thus  fixed  appeared  to  be  greatly  disproportion- 
ate to  the  real  value  of  the  animal  and  the  amount  of  freight  received,  we 
should  not  hesitate  to  declare  it  unjust  and  unreasonable.  But  as  the  case 
is  presented  it  seems  to  have  been  intended  to  adjust  the  measure  of  liability 
to  the  reduced  rate  of  freight  charged,  and  to  protect  the  carrier  against  ex- 
aggerated or  fanciful  valuations.  We  cannot,  therefore,  pronounce  it  unjust 
and  unreasonable,  and  it  is  the  measure  of  appellant's  liability."  Brickell, 
C.  J.,  in  So.  &  No.  Ala.  R.  Co.  v.  Henlein,  52  Ala.  (306,  23  Am.  Rep.  578  (1875). 

Ace.  Squire  v.  N.  Y.  C.  R.  Co.,  98  Mass.  239,  93  Am.  Dec.  162  (1807),  semble; 
Richmond  &  Danville  R.  Co.  v.  Payne,  86  Va.  481.  10  S.  E.  749,  6  L.  R.  A. 
849  (1890);  Zouch  v.  C.  &  O.  Ry.  Co.,  36  W.  Va.  524,  15  S.  E.  185,  17  L.  R. 
A.  116  (1892). 

There  is  a  like  conflict  in  the  decisions  as  to  the  validity,  in  cases  of  neg- 
ligent loss,  of  an  agreement  that  damages  shall  be  measured  by  value  at 
port  of  shipment,  or  by  invoice  price.  See  88  Am.  St.  Rep.  111.  E.  Cases  u[)- 
holdiug  such  an  agreement  include  The  Hadji  (D.  C.)  18  Fed.  459  (1883); 
Pierce  v.  So.  Pac.  Co.,  120  Cal.  156.  47  Pac.  874,  40  L.  R.  A.  350.  354  (1897). 
And  see  Davis  v.  N.  Y..  etc..  R.  Co.,  70  Minn.  37,  72  N.  W.  823  (1897).  Among 
cases  contra  are  Lowenstein  v.  Lombard,  104  N.  Y''.  324,  58  N.  E.  44  (1900); 
111.  Cent.  R.  Co.  v.  Bogard.  78  Miss.  11,  27  South.  879  (1900). 

In  The  Hadji,  supra.  Brown.  ,1.,  said:  "In  stipulating,  as  in  this  bill  of 
lading,  that  in  case  of  loss  or  damage  the  liability  of  the  shipowners  should 
not  extend  beyond  the  invoice  value  of  the  goods,  the  parties  have  in  effect 
agreed  upon  the  value  of  the  goods  for  the  purpose  of  adjusting  any  loss 
that  might  arise:  they  have  provided  a  rule  of  damages  for  themselves,  to 
the  effect  that  the  owner  should  be  indemnified  for  the  actual  cost  of  his 
goods,  but  should  not  claim  any  expected  profits  in  a  foreign  market.  There 
appears  to  me  to  be  nothiiig  so  unreasonable  or  impolitic  in  this  stipulation, 
or  rule  of  damages,  as  to  warrant  the  court  in  holding  it  void.  In  principle, 
it  falls  within  the  cases  above  cited  of  reasonable  regulations  which  it  is 
competent  for  the  parties  to  make.  It  has  nothing  analogous,  as  it  seems  to 
me,  to  those  stipulations  which  provide  for  a  total  exemption  of  a  carrier 
from  liability  for  his  own  negligence,  which  the  supreme  court,  in  Railroad 
Co.  V.  Ix)Ckwood  [ante,  p.  445],  and  in  other  cases,  have  condemned.  *  *  -s 
There  are,  moreover,  special  reasons  of  convenience  and  policy  why  this 
Green  Oarr. — 30 


4G6  EXCEI'TIONAL   LIABILITY   OF   COMMON  CARKIEn.  (Part  4 

SOUTHERN  EXPRESS  CO.  v.  CALDWELL. 
(Supreme  Court  of  the  United  States,  1874.    21  Wall.  2G4,  22  L.  Ed.  .".")•».) 

Caldwell  sued  the  Southern  Express  Company  in  the  court  below, 
as  a  common  carrier,  for  its  failure  to  deliver  at  New  Orleans  a  pack- 
age received  by  it  on  the  23d  day  of  April,  1862,  at  Jackson,  Tennes- 
see— places  the  transit  between  which  requires  only  about  one  day. 
The  company  pleaded  that  when  the  package  was  received  "it  was 
agreed  between  the  company  and  the  plaintilY,  and  made  one  of  the 
express  conditions  upon  which  the  package  was  received,  that  the 
company  should  not  be  held  liable  for  any  loss  of,  or  damage  to,  the 
package  whatever,  unless  claim  should  be  made  therefor  within  ninety 
days  from  its  delivery  to  it."  The  plea  further  averred  that  no  claim 
was  made  upon  the  defendant,  or  upon  any  of  its  agents,  until  the 
year  1868,  more  than  90  days  after  the  delivery  of  the  package  to  the 
company,  and  not  until  the  present  suit  was  brought.  To  the  plea 
thus  made  the  plaintiff  demurred  generally,  and  the  Circuit  Court 
sustained  the  demurrer,  giving  judgment  thereon  against  the  com- 
pany. Whether  this  judgment  was  correct  was  the  question  now  to 
be  passed  on  here. 

Strong,  J.^*  *  *  *  'pj^g  question,  then,  which  is  presented  to  us 
by  this  record  is,  whether  the  stipulation  asserted  in  the  defendant's 
plea  is  a  reasonable  one,  not  inconsistent  with  sound  public  policy. 

It  may  be  remarked,  in  the  first  place,  that  the  stipulation  is  not  a 
conventional  limitation  of  the  right  of  the  carrier's  employer  to  sue. 

measure  of  damages  may  well  be  adopted  between  the  parties  and  sustained 
by  the  court.  In  case  of  loss  or  injury  it  avoids  controversy  as  to  the  value 
in  foreign  and  distant  countries,  often  a  matter  difficult  to  ascertain  with  any 
accuracy,  and  uncertain  and  unsatisfactory  on  the  proofs.  The  invoice  value, 
as  the  limit  of  liability,  renders  the  ascertainment  and  adjustment  of  the 
damages  comparativel.v  easy,  and  tends  materially  to  check  the  litigious  pros- 
ecution of  exaggerated  claims  of  damage  which  this  court  has  been  often 
called  on  to  rebuke." 

An  agi'eement  that  the  carrier  should  not  be  liable  for  more  than  a  speci- 
fied amount  unless  the  true  value  were  stated  has  been  held  imenforceable 
as  applied  to  negligent  loss.  Adams  Ex.  Co.  v.  Stettaners.  fil  111.  184,  14 
Am.  Rep.  57  (1871);  Scruggs  v.  B.  &  O.  R.  Co.  (C.  C.)  18  Fed.  .SIS  (188.3); 
Conover  v.  Pac.  Ex.  Co.,  40  Mo.  App.  31  (1890);  U.  S.  Lace  Curtain  Mills  v. 
Oceanic,  etc.,  Co.  (D.  C.)  145  Fed.  701  (1900).  Contra:  Pac.  Ex.  Co.  v.  Folev, 
46  Kan.  457,  20  Pac.  665,  12  L.  R.  A.  799,  20  Am.  St.  Rep.  107  (1891).  Com- 
pare Oppenheimer  v.  U.  S.  Ex.  Co.  ante,  p.  400. 

An  agreement  increasing  the  evidence  required  to  prove  carrier's  neg- 
ligence is  unenforceable.  So.  Pac.  Co.  v.  Phillipson  (Tex.  Civ.  App.)  .39  S. 
W.  958  (1,8.97)  ;    Cox  v.  Cent.  Vt.  Co.,  170  Mass.  129,  49  N.  E.  97  (1898). 

For  the  effect  of  an  agreement  as  to  value  in  case  of  partial  loss  (e.  g., 
where  goods  valued  at  $100  would,  if  they  arrived  sound,  be  worth  $200,  but 
because  of  damage  are  worth  .$150),  see  Nelson  v.  Gt.  No.  Rv.  Co.,  28  Mont. 
297,  72  Pac.  642  (1903)  ;    U.  S.  Ex.  Co.  v.  Joyce  (Ind.)  72  N.  E.  865  (1904). 

Upon  the  whole  subject,  see  Henry  Wolf  Bikle  on  Agreed  Valuation  as  Af- 
fecting the  Liability  of  Common  Carriers  for  Negligence,  21  Harvard  Law 
Rev.  32.  Authorities  are  collected  in  88  Am.  St.  Rep.  106;  Carriers,  9  Cent. 
Dig.  §§  663-7,  4  Dec.  Dig.  §§  158,  218  (2),  (7). 

64  Parts  of  the  opinion  have  been  omitted. 


Ch.  4)  LIMITATION    OF   LIABILITY.  467 

He  is  left  at  liberty  to  sue  at  any  time  within  the  period  fixed  by  the 
statute  of  limitations.  He  is  only  required  to  make  his  claim  within 
90  days,  in  season  to  enable  the  carrier  to  ascertain  what  the  facts 
are,  and,  having  made  his  claim,  he  may  delay  his  suit. 

It  may  also  be  remarked  that  the  contract  is  not  a  stipulation  for 
exemption  from  responsibility  for  the  defendants'  negligence,  or  for 
that  of  their  servants.  It  is  freely  conceded  that  had  it  been  such, 
it  would  have  been  against  the  policy  of  the  law,  and  inoperative. 
Such  was  our  opinion  in  Railroad  Company  v.  Lockwood  [ante,  p. 
445].  A  common  carrier  is  always  responsible  for  his  negligence, 
no  matter  what  his  stipulations  may  be.  But  an  agreement  that  in 
case  of  failure  by  the  carrier  to  deliver  the  goods,  a  claim  shall  be 
made  by  the  bailor,  or  by  the  consignee,  within  a  specified  period, 
if  that  period  be  a  reasonable  one,  is  altogether  of  a  different  char- 
acter. It  contravenes  no  public  policy.  It  excuses  no  negligence.  It 
is  perfectly  consistent  with  holding  the  carrier  to  the  fullest  measure 
of  good  faith,  of  diligence,  and  of  capacity,  which  the  strictest  rules 
of  the  common  law  ever  required.  And  it  is  intrinsically  just,  as  ap- 
plied to  the  present  case.  The  defendants  are  an  express  company. 
We  cannot  close  our  eyes  to  the  nature  of  their  business.  They  car- 
ry small  parcels  easily  lost  or  mislaid,  and  not  easily  traced.  They 
carry  them  in  great  numbers. 

Express  companies  are  modern  conveniences,  and  notoriously  they 
are  very  largely  employed.  They  may  carry,  they  often  do  carry, 
hundreds,  even  thousands  of  packages  daily.  If  one  be  lost,  or  al- 
leged to  be  lost,  the  difficulty  of  tracing  it  is  increased  by  the  fact 
that  so  many  are  carried,  and  it  becomes  greater  the  longer  the  search 
is  delayed.  If  a  bailor  may  delay  giving  notice  to  them  of  a  loss,  or 
making  a  claim  indefinitely,  they  may  not  be  able  to  trace  the  parcels 
bailed,  and  to  recover  them,  if  accidentally  missent,  or  if  they  have 
in  fact  been  properly  delivered.  With  the  bailor  the  bailment  is  a 
single  transaction,  of  which  he  has  full  knowledge;  with  the  bailee, 
it  is  one  of  a  multitude.  There  is  no  hardship  in  requiring  the  bailor 
to  give  notice  of  the  loss  if  any,  or  make  a  claim  for  compensation 
within  a  reasonable  time  after  he  has  delivered  the  parcel  to  the  car- 
rier. There  is  great  hardship  in  requiring  the  carrier  to  account  for 
the  parcel  long  after  that  time,  when  he  has  had  no  notice  of  any 
failure  of  duty  on  his  part,  and  when  the  lapse  of  time  has  made  it 
difficult,  if  not  impossible,  to  ascertain  the  actual  facts.  For  these  rea- 
sons such  limitations  have  been  held  valid  in  similar  contracts,  even 
when  they  seem  to  be  less  reasonable  than  in  the  contracts  of  com- 
mon carriers. 

Policies  of  fire  insurance,  it  is  well  known,  usually  contain  stipu- 
lations that  the  insured  shall  give  notice  of  a  loss,  and  furnish  proofs 
thereof  within  a  brief  period  after  the  fire,  and  it  is  undoubted  that 
if  such  notice  and  proofs  have  not  been  given  in  the  time  designated 
or  have  not  been  waived,  the  insurers  are  not  liable.     Such  condi- 


4G8  EXCIOl'TIONAL    LIAHILITY    OF    COMMON   CAIUUER.  (Part    4 

tions  have  always  been  considered  reasonable,  because  they  give  the 
insurers  an  opportunity  of  inquiring  into  the  circumstances  and 
amount  of  the  loss,  at  a  time  when  inquiry  may  be  of  service.  And, 
still  more,  conditions  in  policies  of  fire  insurance  that  no  action  shall 
be  brought  for  the  recovery  of  a  loss  unless  it  shall  be  commenced 
within  a  specified  time,  less  than  the  statutory  period  of  limitations, 
are  enforced,  as  not  against  any  legal  policy.  See  Riddlesbarger  v. 
Hartford  Insurance  Company,  7  Wall.  386,  19  L.  Ed.  257,  and  the 
numerous  cases  therein  cited. °^     *     *     * 

Our  conclusion,  then,  founded  upon  the  analogous  decisions  of 
courts,  as  well  as  upon  sound  reason,  is  that  the  express  agreement 
between  the  parties  averred  in  the  plea  was  a  reasonable  one,  and 
hence  that  it  was  not  against  the  policy  of  the  law.  It  purported  to 
relieve  the  defendants  from  no  part  of  the  obligations  of  a  common 
carrier.  They  were  bound  to  the  same  diligence,  fidelity,  and  care 
as  they  would  have  been  required  to  exercise  if  no  such  agreement 
had  been  made.  AH  that  the  stipulation  required  was  that  the  shipper, 
in  case  the  package  was  lost  or  damaged,  should  assert  his  claim  in 
season  to  enable  the  defendants  to  ascertain  the  facts ;  in  other  words, 
that  he  should  assert  it  within  ninety  days.  It  follows  that  the  Cir- 
cuit Court  erred  in  sustaining  the  plaintiff's  demurrer  to  the  plea. 

Judgment  reversed.^'' 

5  5  The  learned  judge  here  reviewed  cases  against  telegraph  companies  and 
common  carriers  in  which  similar  provisions  were  set  up  in  defense. 

5  6  In  The  Queen  of  the  Pacific,  180  U.  S.  49,  21  Sup.  Ct.  278,  4.">  L.  Ed.  419 
(1901),  a  stipulation  in  a  bill  of  lading  provided  that  claims  for  damage 
■"must  be  presented  to  the  company  within  30  days  from  date  hereof."  A 
claim  not  presented  for  nearly  4  years  was  held  to  be  barred.  Brown,  J., 
said:  "The  question  of  the  reasonableness  of  the  requirement  is  one  largely 
dependent  upon  the  object  of  the  notice  and  the  length  of  the  voyage.  Thus, 
a  notice  which  would  be  perfectly  reasonable  as  applied  to  steamers  making 
daily  trips  might  be  wholly  mireasonable  as  applied  to  vessels  engaged  in  a 
foreign  trade.  Indeed,  a  30-day  notice,  such  as  is  involved  in  this  case, 
would  be  wholly  futile  as  applied  to  a  steamship  plying  between  San  Fran- 
•cisco  and  trans-Facific  ports.  Notice  might  also  be  deemed  reasonalde,  or 
otherwise,  according  to  the  facts  of  the  particular  case.  Thus,  if  the  Queen 
had  been  driven  out  to  sea,  and  was  not  heard  from  for  30  days,  obviously 
the  provision  would  not  apply,  since  its  enforcement  might  wholly  destroy 
the  right  of  recovery.  The  question  is  whether,  under  the  circumstances  of 
the  particular  case,  the  requirement  be  a  reasonable  one  or  not.  The  Queen 
vas  engaged  in  short  trii)s  and  in  general  trade  to  San  Diego,  doubtless  de- 
livering merchandise  in  different  parcels  and  in  different  quantities  to  large 
numbers  of  consignees  at  the  termini,  and  at  intermediate  ports.  If  any 
damage  occurred  to  such  articles,  it  was  of  the  utmost  importance  to  the 
company  to  have  the  claim  made  as  soon  as  possible,  while  the  witnesses, 
who  must  often  be  sailors,  difficult  to  find,  and  still  more  difficult  to  retain, 
might  be  reached,  and  while  their  memory  was  fresh,  that  the  company 
might  then  know  whether  it  had  a  defense  to  the  claim.  *  *  *  It  is  unneces- 
sary to  say  that  if,  under  the  circumstances  of  a  particular  case,  the  stipu- 
lation were  unreason^ible  or  worked  a  manifest  injustice  to  the  libelants,  we 
should  not  give  it  effec-t." 

In  Southern  Ry.  Co.  v.  Adams,  11.5  Ga.  705,  42  S.  E.  3.5  (1902),  Little,  J., 
said:  "It  can,  we  think,  readily  be  seen  that  a  stipulation  making  it  a  con- 
dition precedent  in  a  case  where  live  stock  is  shipped  that  the  o^N-ner  or 
-consignee,  shall,  when  such  live  stock  reaches  the  place  of  its  destination,  give 


Ch,  4)  LIMITATION    OF   LIABILITY.  4G9 

THOMPSON  V.  CHICAGO  &  A.  R.  CO. 
(Kansas  City  Court  of  Appeals,  188G.     22  INIo.  Aiip.  321.) 

Ellison,  J.°^  This  is  an  action  for  damages  sustained  by  plain- 
tiff in  the  shipment  of  a  lot  of  cattle. 

The  petition  alleges  "that,  on  the  3d  day  of  April,  1883,  at  or  about 
7  o'clock  p.  m.  of  said  day,  he  dehvered  to  said  defendant,  already 
loaded  into  cars  and  in  good  condition  for  transportation,  at  Kansas 
City,  Missouri,  eleven  cars  of  beef  cattle,  numbering  in  the  aggregate 
18-i  head,  and  two  cars  of  sheep,  numbering  about  200  head,  which  the 

notice  to  the  agent  of  the  company  of  a  claim  for  damages  before  the  stock 
is  carried  from  such  a  place,  and  before  the  animals  are  intermingled  with 
others,  is  reasonable;  for.  if  such  stock  has  become  depreciated  by  delay  in 
transportation,  or  want  of  proper  attention  on  the  part  of  the  transportation 
company,  such  fact  can  be  more  readily  ascertained  at  that  time  than  after- 
wards, and  it  affords  to  the  carrier  an  opportmiity  of  protecting  itself  from 
an  unauthorized  claim.  So,  likewise,  the  stipulation  that  this  notice  shall  be 
given  before  the  stock  is  intermingled  with  others  serves  the  purpose  of  identi- 
fying the  stock  which  were  actually  shipped.  It  would  seem,  then,  that  such 
a  stipulation  prejudices  no  right  of  the  owmer  or  consiguoi-.  and  at  the  same 
time  protects  the  transportation  company;  and,  following  the  authorities 
above  cited,  we  must  rule  that  not  only  could  the  carrier  lawfully  make  a 
contract  containing  a  stipulation  of  this  character,  but  that  the  stipulation 
is  a  reasonable  one." 

For  authorities,  see  Carriers,  9  Cent.  Dig.  §§  670,  938,  4  Dec.  Dig.  §§  159, 
218  (3). 

In  Engesether  v.  Gt.'  No.  Ry.  Co..  65  Minn.  168,  68  N.  W.  4  (1896),  defend- 
ant railroad  issued  a  bill  of  lading  for  cattle  to  be  delivered  at  a  point  on  a 
connecting  line,  which  contained  a  stipulation  that  the  shipper  as  a  condition 
precedent  to  his  right  to  recover  for  loss  or  injnry,  should  give  notice  in 
■writing  to  an  officer  or  to  the  nearest  station  agent  of  defendant  before  the 
cattle  were  removed  from  the  place  of  delivery  or  mingled  with  other  stock. 
Mitchell.  J.,  said:  "In  the  present  case  the  freight  was  live  stock  being  ship- 
ped to  the  market,  and  which  had  to  be  speedily  disposed  of  after  it  reached 
its  destination,  and  was  liable  to  deteriorate  in  flesh  and  weight  by  remain- 
ing in  the  stockyards,  to  say  nothing  of  the  expense  of  feeding.  The  place 
of  delivery  was  beyond  the  line  of  defendant's  road,  and  it  does  not  appear 
that  it  had  any  agent  or  officer  there,  and  there  is  no  presumption  that  it 
had  any.  *  *  *  Aside  from  the  very  indefinite  and  uncertain  terms  of  this 
provision,  we  think  that  to  require  plaintiff,  under  the  circumstances,  as  a 
condition  of  his  right  to  recover  damages,  to  keep  his  stock  until  he  could 
jirepare  a  written  notice,  and  then  go  or  send  and  hunt  up  an  oflicer  of  tlje 
defendant  company  upon  whom  to  serve  it.  was  unreasonable  and  void. 
*  *  *  In  this  case  it  is  true  that  it  was  only  10  miles  from  the  point  where 
defendant  tyrned  over  the  stock  to  the  other  road  to  the  place  of  its  des- 
tination;  but  the  principle  is  the  same  as  if  it  had  been  .50  or  100  miles." 

Ace.  Smitha  v.  L.  &  N.  R.  Co.,  86  Tenn.  198.  6  S.  W.  209  (1887):  Baxter 
V.  Louisville,  etc.,  R.  Co..  165  111.  78,  45  N.  E.  1003  (1897).  As  to  the  enforce- 
ability of  a  condition  requiring  notice  of  claim  when  the  carrier  knows  the 
facts,  see  Richardson  v.  Chicago  &  A.  R.  Co..  62  Mo.  App.  1  (1895);  Kansas, 
etc..  Co.  V.  Ayers.  63  Ark.  ,331.  38  S.  W.  515  (1897) ;  The  St.  Hubert,  107  Fed. 
T27.  46  C.  C.  A.  603  (1901);  Freeman  v.  Kansas  City  So.  R.  Co.,  118  Mo  App 
526.  93  S.  W.  302  (1906). 

AYhere  the  time  specifietl  for  giving  notice  proves  unreasonably  short,  it 
has  been  held  that  notice  within  a  reasonable  time  was  neces.sary.  Oster- 
howdt  V.  So.  Pac.  Co..  47  App.  Div.  146,  62  N.  Y.  Supp.  134  (I960)";  The  St 
Hubert  (D.  C.)  102  Fed.  362  (1900). 

5  7  Part  of  the  opinion  has  been  omitted. 


470  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

said  defendant  received,  and  by  its  agents  and  servants  then  and 
there  agreed,  for  a  valuable  consideration  paid  by  said  plaintiff  to  said 
defendant,  to  transport  said  stock  as  speedily  as  possible,  and  with- 
out unnecessary  delay,  to  the  city  of  Chicago,  in  the  state  of  Illi- 
nois ;  *  *  *  that  defendant  failed  to  perform  its  contract  in  the 
shipping  of  said  stock  as  it  had  agreed."  The  petition  then  assigned 
delay  in  transportation  as  the  breach  of  defendant's  contract  of  ship- 
ment, to  plaintiff's  damage  in  the  sum  of  $1,050.60,  for  which  judg- 
ment was  prayed. 

Defendant's  answer,  in  addition  to  a  general  denial,  contained  five 
special  defenses,  in  the  third  of  which  it  was  alleged  "that,  at  the  time 
it  received  said  stock  for  shipment,  written  contracts  were  entered 
into  between  plaintiff  and  defendant  for  the  transportation  of  the 
same,  among  the  provisions  of  which  was  one  requiring  suit  to  be 
brought  within  60  days  next  after  any  loss  or  damage  should  occur, 
or  be  thereafter  forever  barred,  and  the  lapse  of  time  should  be  con- 
clusive evidence  against  the  validity  of  the  claim  in  any  action  begun 
thereon  after  that  time."  The  answer  then  alleged  the  suit  was  not 
brought  within  the  60  days. 

The  reply  to  the  new  matter,  relative  to  the  special  contract  set  up 
in  the  answer,  alleged  that  plaintiff's  damages  were  caused  by  de- 
fendant's negligence,  and  that  he  did  not  sue  in  the  first  instance  be- 
cause of  assurances  from  defendant  that  his  claim  would  be  settled ; 
that,  as  soon  as  he  was  notified  that  his  claim  would  not  be  paid,  he 
brought  suit.  The  reply  also  pleaded  want  of  consideration  for  the 
special  contract. 

The  stock  arrived  at  Chicago  on  April  8.  and  this  suit  was  insti- 
tuted June  29,  1883,  82  days  thereafter.  Plaintiff  resides  in  Ottawa, 
Kan.,  55  miles  from  Kansas  City,  the  place  where  this  action  was  in- 
stituted. 

At  the  close  of  the  evidence  in  the  court  below,  an  instruction  was 
given  declaring  that  plaintiff  could  not  recover,  and  he  brings  the  case 
here  by  writ  of  error. 

It  is  conceded  that  this  action  is  brought  12  days  after  the  expira- 
tion of  the  time  limited  by  the  contract,  but  plaintiff  seeks  by  his  re- 
ply to  excuse  himself  from  complying  with  the  contract  for  the  fol- 
lowing reasons:  (1)  The  damage  was  occasioned  by  the  negligence 
of  defendant;  (2)  that  immediately  after  discovering  his  loss  he  pre- 
sented his  bill  for  damages  to  defendant's  chief  officers  and  was  as- 
sured by  them  that  it  would  be  justly  and  amicably  settled,  and  that 
he  relied  upon  this  until  notified  by  defendant's  officers  it  would  not 
be  paid,  when  he  immediately  brought  this  action;  (3)  that  the  con- 
tract aforesaid  was  nudum  pactum. 

Conceding  the  damage  was  occasioned  by  defendant's  negligence, 
and  admitting  the  well  settled  law  that  a  carrier  may  not  stipulate 
against  his  own  negligence,  yet  these  concessions  do  not  aid  plain- 
tiff, for  this  is  not  a  stipulation   relieving  defendant  of  negligence, 


Ch.  4)  LIMITATION    OF   LIABILITY.  471 

but  rather  implying  that  it  may  be  liable  in  this  respect,  and  requiring 
an  action  to  be  instituted  for  such  negligence  within  a  given  time.  The 
stipulation  does  not  relieve  defendant  of  any  duty,  but  imposes  one 
on  plaintiff. 

There  is  a  question  of  fact  involved  in  the  second  matter  set  up 
in  the  reply.  The  indisputable  evidence  is  that  plaintiff  did  not  bring 
his  action  as  soon  as  notified  that  his  claim  was  rejected,  nor  did  he 
until  13  days  thereafter.  From  the  time  of  the  loss  until  pay- 
ment was  finally  refused,  a  correspondence  between  plaintiff  and  de- 
fendant's general  superintendent  intervened,  in  which  plaintiff  is  as- 
sured that  the  claim  was  being  investigated,  and  from  conversations 
had  with  the  adjusting  officer,  it  was  stated  the  writer  felt  quite  sure 
the  claim  would  be  settled  satisfactorily. 

It  is  urged  that  the  time  covered  by  this  correspondence  should  not 
be  considered  as  a  portion  of  the  time  limited  by  the  contract. 

Questions  of  this  nature  have  frequently  been  before  the  courts. 
Though  many  of  the  cases  are  on  contracts  wherein  the  time  limited  is 
as  to  giving  notice  of  a  claim  for  damages  or  loss,  while  the  case  be- 
fore us  limits  the  time  for  bringing  the  action  itself,  I  can  perceive 
no  distinction  in  principle,  though  it  has  been  suggested  that  the  lim- 
itation by  contract  was  against  the  policy  of  the  statute  of  limita- 
tion, or  limitation  by  law. 

This  suggestion  was  urged  before  the  Supreme  Court  of  the  United 
States,  in  the  case  of  Riddlesbarger  v.  Hartford  Insurance  Company 
(1868)  7  Wall.  386,  19  L.  Ed.  257,  and  it  was  there  decided  that  such 
stipulations  in  contracts  did  not  contravene  the  policy  of  limitation 
by  the  statute,  and  that  the  notion  arose  from  a  misconception  of  the 
nature  and  object  of  such  statutes. 

When  the  time  limited  by  contract  is  specially  named,  the  courts, 
as  a  matter  of  law,  will  say  whether  it  be  reasonable.  If  the  limit  is 
stated  to  be  a  reasonable  time,  the  jury  will  say  what  period  is  rea- 
sonable, under  the  circumstances  of  the  particular  case.  Five  days 
has  been  held  to  be  a  reasonable  time  in  which  to  limit  a  notice  of 
loss,  in  the  cases  of  Dawson  v.  Railway  Co.,  76  Mo.  514,  Brown  v. 
Railway  Co.,  18  Mo.  App.  568,  and  McBeath  v.  Railway  Co.,  20  Mo. 
App.  445. 

The  fact  that  a  portion  of  the  period  limited  in  the  case  was  taken 
up  by  correspondence  does  not  relieve  the  plaintiff  of  his  obliga- 
tion, for  12  days  yet  remained  in  which  he  might  have  instituted  the 
suit.  The  evidence  discloses  no  reason  why  he  did  not  sue,  after  re- 
ceiving notice  that  his  claim  was  rejected,  and  before  the  expiration 
of  the  60  days.     *     *     * 

Judgment  affirmed. ^^ 

5  8  In  Gulf,  etc.,  Ry.  Co.  v.  Trawick,  68  Tex.  314,  4  S.  W.  5G7,  2  Am.  St. 
Rep.  494  (1887),  a  statute  made  void  agreements  limiting  or  restricting  the 
liability  of  common  carriers.  A  bill  of  lading  for  cattle  stipulated  that  as 
a  condition  precedent  of  bis  right  to  recover  damages   the  shipper   should 


472  EXCErTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part,  4 

SECTION   3.— LHIITATIOX   OF   LIABILITY   BY    STATUTE 


REVISED   STATUTES   OF  THE  UNITED   STATES. 

Sec.  4281.  If  any  shipper  of  platina,  gold,  gold  dust,  silver,  bul- 
lion, or  other  precious  metals,  coins,  jewelry,  bills  of  any  bank  or 
public  body,  diamonds,  or  other  precious  stones,  or  any  gold  or  silver 
in  a  manufactured  or  vmmanufactured  state,  watches,  clocks,  or  time- 
pieces of  any  description,  trinkets,  orders,  notes,  or  securities  for  pay- 
ment of  money,  stamps,  maps,  writings,  title-deeds,  printings,  engrav- 
ings, pictures,  gold  or  silver  plate  or  plated  articles,  glass,  china,  silks 
in  a  manufactured  or  unmanufactured  state,  and  whether  w^rought  up 
or  not  wrought  up  w^ith  any  other  material,  furs,  or  lace,  or  any  of 
them,  contained  in  any  parcel,  or  package,  or  trunk,  shall  lade  the 
same  as  freight  or  baggage,  on  any  vessel,  without  at  the  time  of 
such  lading  giving  to  the  master,  clerk,  agent,  or  owner  of  such  vessel 
receiving  the  same  a  written  notice  of  the  true  character  and  value 
thereof,  and  having  the  same  entered  on  the  bill  of  lading  therefor, 
the  master  and  owner  of  such  vessel  shall  not  be  liable  as  carriers 
thereof  in  any  form  or  manner;  nor  shall  any  such  master  or  owner 
be  liable  for  any  such  goods  beyond  the  value  and  according  to  the 
character  thereof  so  notified  and  entered.^® 

^ive  notice  of  claim  before  the  cattle  were  renioved.  aiKl  that  no  suit  shonUl 
be  sustained  unless  brou.irht  within  40  days  after  the  damage  should  occur. 
The  stipulation  as  to  makins  claim  was  held  void  under  the  statute,  and 
that  as  to  the  time  for  suing  valid. 

5  9  This  section  is  founded  upon  Act  March  3.  18.51,  c.  4.3.  §  2,  9  Stat.  03-5 
(U.  S.  Comp.  St.  1901,  p.  2942).  Compare  Consulate  of  the  Sea,  c.  212,  ante, 
p.  97.  note. 

'■The  liability  of  the  carrier  as  such  was  well  understood  by  the  framers  of 
the  statute.  It  had  long  been  settled  so  that  no  one  could  mistake  it.  By 
force  of  his  public  emjiloyment  he  became  an  insurer  of  the  property  intrust- 
ed to  his  care,  and  liable  for  its  loss,  irrespective  of  the  cause,  unless  fi-om 
the  act  of  God  or  the  public  enemy.  But  involved  in  this  greater  liability 
and  absorbed  by  it  was  a  lesser  liability  as  bailee  for  hire;  of  no  conse- 
quence while  the  greater  liability  existed,  but  surviving  the  destruction  of 
that,  so  that  when  the  carrier  ceased  to  be  liable  as  carrier  he  yet  remained 
liable  as  bailee.  *  *  *  So  much  and  no  more  than  that  the  section  under 
consideration  accomplished,  for  it  distinctly  removes  the  liability  as  can'ier, 
v\-ithout  touching  that  as  bailee.  *  *  *  We  are  further  referretl  to  the  case 
of  Hinton  v.  Dlbbln.  2  Adol.  &  E.  (N.  S.)  646,  in  which  It  was  held  under 
a  similar  statute  (1  Wm.  IV,  c.  08)  that  the  carrier  could  not  be  held  liable 
even  for  gross  negligence;  but  that  decision  was  founded  upon  an  euactment 
from  which  the  words  'lialile  as  carrier'  were  conspicuously  absent.  *  *  *  " 
Finch.  J.,  in  Wheeler  v.  Oceanic  Steam  Nav.  Co.,  125  N.  Y.  155,  20  X.  E.  24S, 
21  Am.  St.  Rep.  729  (1S91.I,  holding  a  common  carrier  by  steamship  lialile  for 
a  box  of  pictures  shipped  by  an  artist,  without  giving  notice  of  their  char- 
acter as  provided  in  the  statute,  and  lost  by  fault  of  its  servants. 

Ace.  La  Bourgogue,  144  Fed.  781,  75  C.  C.  A.  047  (1900).  For  other  cases 
under  this  section,  see  4  Fed.  St.  Ann.  837. 


Ch.  4)  LIMITATION    OF   LIABILITY.  473 

» 

Sec.  4282.  No  owner  of  any  vessel  shall  be  liable  to  answer  for 
or  make  good  to  any  person  any  loss  or  damage  which  may  happen 
to  any  merchandise  whatsoever,  which  shall  be  shipped,  taken  in,  or 
put  on  board  any  such  vessel,  by  reason  or  by  means  of  any  fire  hap- 
pening to  or  on  board  the  vessel,  unless  such  fire  is  caused  by  the  de- 
sign or  neglect  of  such  owner.*^" 

Sec.  4283.  The  liability  of  the  owner  of  any  vessel,  for  any  em- 
bezzlement, loss,  or  destruction,  by  any  person,  of  any  property,  goods, 
or  merchandise,  shipped  or  put  on  board  of  such  vessel,  or  for  any 
loss,  damage,  or  injury  by  collision,  or  for  any  act,  matter,  or  thing, 
lost,  damage,  or  forfeiture,  done,  occasioned,  or  incurred,  without  the 
privity,  or  knowledge  of  such  owner  or  owners,  shall  in  no  case  ex- 
ceed the  amount  or  value  of  the  interest  of  such  owner  in  such  ves- 
sel, and  her  freight  then  pending. 

Sec.  4284.  Whenever  any  such  embezzlement,  loss,  or  destruction 
is  suffered  by  several  freighters  or  owners  of  goods,  wares,  merchan- 
dise, or  any  property  whatever,  on  the  same  voyage,  and  the  whole 
value  of  the  vessel,  and  her  freight  for  the  voyage,  is  not  sufficient  to 
make  compensation  to  each  of  them,  they  shall  receive  compensation 
from  the  owner  of  the  vessel  in  proportion  to  their  respective  losses; 
and  for  that  purpose  the  freighters  and  owners  of  the  property,  and 
the  owner  of  the  vessel,  or  any  of  them,  may  take  the  appropriate 
proceedings  in  any  court,  for  the  purpose  of  apportioning  the  sum 
for  which  the  owner  of  the  vessel  may  be  liable  among  the  parties 
entitled  thereto. 

Sec.  4285.  It  shall  be  deemed  a  sufficient  compliance  on  the  part  of 
such  owner  with  the  requirements  of  this  title  relating  to  his  liabil- 
ity for  any  embezzlement,  loss,  or  destruction  of  any  property,  goods, 
or  merchandise,  if  he  shall  transfer  his  interest  in  such  vessel  and 
freight,  for  the  benefit  of  such  claimants,  to  a  trustee,  to  be  appointed 
by  any  court  of  competent  jurisdiction,'  to  act  as  such  trustee  for  the 
person  who  may  prove  to  be  legally  entitled  thereto ;  from  and  after 
which  transfer  all  claims  and  proceedings  against  the  owner  shall 
cease. 

Sec.  4286.  The  charterer  of  any  vessel,  in  case  he  shall  man,  victu- 
al, and  navigate  such  vessel  at  his  own  expense,  or  by  his  own  pro- 
curement, shall  be  deemed  the  owner  of  such  vessel  within  the  mean- 
ing of  the  provisions  of  this  title  relating  to  the  limitation  of  the  lia- 
bility of  the  owners  of  vessels ;  and  such  vessel,  when  so  chartered, 
shall  be  liable  in  the  same  manner  as  if  navigated  by  the  owner  thereof. 

60  This  section  is  founded  upon  Act  March  3,  1.8.51,  e.  4.3.  §  1,  9  Stat.  635 
(U.  S.  Comp.  St.  1901.  p.  2943).  In  the  cases  to  which  it  applies,  it  relieves 
an  owner  not  personally  at  fault  from  liability  for  the  fault  of  the  officers 
or  erew  of  his  vessel.  Walker  v.  Transportation  Co.,  3  Wall.  150.  IS  L.  Ed. 
172  (1865).  It  has  been  held  not  to  apply  to  loss  of  passengers'  baggage. 
The  Marine  City  (D.  C.)  6  Fed.  413  (18S1).  Or  to  the  loss  of  a  horse  and 
vehicle  on  a  ferryboat.  The  Garden  City  (D.  C.)  26  Fed.  706  (1886).  For 
other  cases  under  this  section,  see  4  Fed.  St.  Ann.  838, 


474  EXCErxioxAL  LiAniLiTY  OF  COMMON  CARRIER.  (Part  4: 

Sec.  4289  [as  amended  1875,  1886].  The  provisions  of  the  seven 
preceding  sections,  and  of  section  eighteen  of  an  act  entitled  "An  act 
to  remove  certain  burdens  on  the  American  merchant  marine  and  en- 
courage the  American  foreign  carrying-trade,  and  for  other  purposes," 
approved  June  twenty-sixth,  eighteen  hundred  and  eighty-four,  relat- 
ing to  the  limitations  of  the  liability  of  the  owners  of  vessels,  shall 
apply  to  all  sea-going  vessels,  and  also  to  all  vessels  used  on  lakes  or 
rivers  or  in  inland  navigation,  including  canal-boats,  barges,  and 
lighters.''^ 

Act  June  26,  1884,  c.  121,  §  18,  23  Stat.  57  (U.  S.  Comp.  St.  1901, 
p.  2945).  That  the  individual  liability  of  a  shipowner,  shall  be  lim- 
ited to  the  proportion  of  any  or  all  debts  and  liabilities  that  his  individ- 
ual share  of  the  vessel  bears  to  the  whole;  and  the  aggregate  liabil- 
ities of  all  the  owners  of  a  vessel  on  account  of  the  same  shall  not 
exceed  the  value  of  such  vessels  and  freight  pending:  Provided,  that 
this  provision  shall  not  afifect  the  liability  of  any  owner  incurred  pre- 
vious to  the  passage  of  this  act,  nor  prevent  any  claimant  from  join- 
ing all  the  owners  in  one  action ;  nor  shall  the  same  apply  to  wages 
due  to  persons  employed  by  said  shipowners. 


THE  CITY  OF  NORWICH. 

(Supreme  Court  of  the  Uuited  States,  18-86.     IIS  U.  S.  468,  6  Sup.  Ct.  1150, 

30  L.  Ed.  134.) 

The  steamboat  City  of  Norwich,  owned  by  the  Norwich  &  New 
York  Transportation  Company,  collided  with  the  schooner  Van  Vliet 
in  Long  Island  Sound  in  April,  1866.  The  schooner  was  sunk.  The 
steamboat  was  set  on  fire  by  the  colHsion,  and  subsequently  sank  with 
her  cargo.  The  owners  of  the  schooner  sued  the  owner  of  the  steam- 
boat in  the  District  Court  of  the  United  States  for  the  District  of 
Connecticut,  and  eventually  obtained  a  decree  for  about  $22,000.  The 
steamboat  was  raised,  taken  to  Long  Island,  and  repaired.  She  was 
then  libeled  in  rem  by  owners  of  her  lost  cargo  in  the  District  Court 
of  the  United  States  for  the  Eastern  District  of  New  York,  within 
whose  territorial  jurisdiction  she  was.  Thereupon  the  owner  of  the 
steamboat,  for  the  purpose  of  obtaining  the  benefit  of  the  limited  lia- 
bility act  of  1851  (Rev.  St.  §§  4283-4287  [U.  S.  Comp.  St.  1901,  pp. 
2943,  2944]),  took  proceedings  in  the  Connecticut  court  to  limit  the 
damages  recoverable  from  him  in  the  suit  there  pending  to  that  per- 
centage of  the  vessel's  value  which  the  liability  estabhshed  in  that 
suit  bore  to  all  the  owner's  liabilities  arising  out  of  the  collision.  On 
appeal  to  the  Supreme  Court  of  the  United  States  that  court  held 
that  the  Connecticut  court  had  no  right  to  give  relief  in  the  form  in 

«i  These  sections  are  founded  upon  Act  March  3.  1851,  c.  43,  §§  3,  4,  5,  7, 
9  Stat.  635,  636  (U.   S.  Comp.   St.   1901,  pp.  2943-2945). 


Ch.  4)  LIMITATION    OF   LIABILITY.  475 

which  it  was  asked  to  do  so.  Norwich  Co.  v.  Wright,  13  Wall.  104, 
20  L.  Ed.  585  (1871).  It  was  suggested,  however,  that  the  owner 
might  obtain  the  benefit  of  the  limited  liability  act  by  appropriate  pro- 
ceedings in  the  District  Court  in  New  York  which  had  possession  of 
the  vessel  or  of  security  given  when  she  was  released  from  arrest.  The 
Supreme  Court  also  promulgated  rules  of  practice  prescribing  the 
nature  and  course  of  such  proceedings.  Rules  of  Practice  in  Ad- 
miralty, Nos.  54-57,  13  Wall,  xii,  xiii;  Hughes  on  Admiralty,  463- 
464. 

In  conformity  with  these  rules,  the  owner  of  the  steamboat  filed  a 
petition  in  the  District  Court  of  the  United  States  for  the  Eastern 
District  of  New  York.  The  petition  prayed  the  court  to  cause  an 
appraisal  to  be  made  of  the  value  of  the  petitioner's  interest  in  the 
vessel  and  her  pending  freight,  and,  upon  petitioner's  paying  into 
court  or  giving  security  for  the  value  as  appraised,  to  cite  all  per- 
sons having  claims  arising  out  of  the  collision  to  appear  and  prove 
their  claims,  and  to  enjoin  them  from  prosecuting  their  demands  in 
any  other  proceeding. 

The  court  entertained  the  petition,  and  held  that  the  value  of  the 
steamboat  intended  by  the  statute  was,  in  this  case,  the  value  as  the 
vessel  lay  after  sinking,  and  was  not  her  value  before  the  collision, 
nor  her  value  immediately  after  the  collision  and  before  she  was 
damaged  by  fire,  nor  her  value  after  she  had  been  raised.  The  court 
also  held  that  the  liability  of  the  owner  was  not  increased  by  the  fact 
that  he  was  insured  against  his  vessel's  loss  by  fire  and  had  been  paid 
over  $49,000  as  insurance  money.  It  further  held  that  since  no  freight 
money  had  been  paid  or  earned  the  owner  was  under  no  liability  to 
damage  claimants  by  reason  of  pending  freight.  The  value  of  the 
steamboat  was  fixed  at  $2,500.  The  petitioner  paid  this  sum  into 
court,  and  a  decree  was  made  apportioning  it  among  the  persons  who 
had  proved  claims  in  that  proceeding,  and  discharging  petitioner  from 
further  liability  for  the  collision.  On  appeal  to  the  Circuit  Court  the 
decree  was  affirmed.  The  Circuit  Court  found  that  the  collision, 
though  caused  by  negligence  of  the  steamboat's  officers  or  hands,  was 
without  design,  neglect,  privity,  or  knowledge  of  her  owner.  From 
the  decree  of  affirmance,  owners  of  cargo  appeal  to  the  Supreme 
Court. 

Bradley,  J."-  *  *  *  The  next  question  to  be  considered  is,  at 
what  time  ought  the  value  of  the  vessel  and  her  pending  freight  to  be 
taken,  in  fixing  the  amount  of  her  owners'  liability?  Ought  it  to  be 
taken  as  it  was  immediately  before  the  collision,  or  afterwards?  And 
if  afterwards,  at  what  time  afterwards? 

The  first  question  has  been  repeatedly  answered  by  the  decisions  of 
this  court.     We  held  in  Norwich  Co.  v.  Wright,  and  have  held  and 

62  The  statement  of  facts  has  been  rewritten.  Parts  of  the  opinion  are 
omitted. 


476  EXCEl'TKj.XAL    LIABILITY    OF    COMMON   CAKItlEU.  (Part  4: 

decided  in  many  cases  since,  that  the  act  of  Congress  adopted  the  rule 
of  the  maritime  law  as  contradistinguished  from  that  of  the  English 
law  on  this  subject  ;^^  and  that  the  value  of  the  vessel  and  freight 
after,  and  not  before,  the  collision  is  to  be  taken.  But  at  what  precise 
time  after  the  collision  this  value  should  be  taken  has  not  been  fully 
determined  so  as  to  establish  a  general  rule  on  the  subject.  That  is  a 
question  which  deserves  some  consideration.  In  the  case  of  The  Scot- 
land, 105'  U.  S.  24,  26  L.  Ed.  1001,  the  collision  occurred  opposite 
Fire  Island  Light,  and  the  steamer  being  much  injured,  put  back  in 
order,  if  possible,  to  return  to  New  York ;  but  was  unable  to  get  fur- 
ther than  the  middle  ground  outside  and  south  of  Sandy  Hook,  where 
she  sunk,  and  nothing  was  saved  but  a  few  strippings,  taken  from 
her  before  she  went  down.  We  held  that  these  strippings  were  all 
of  the  ship  that  could  be  valued,  although  she  had  run  30  or  40  miles 
after  the  collision.  The  value  was  taken,  not  as  it  was,  or  as  it  might 
have  been  supposed  to  be,  immediately  after  the  collision,  but  as  it 
was  after  the  effects  of  the  collision  were  fully  developed  in  the  sink- 
ing of  the  ship. 

An  examination  of  the  statute  will  afford  light  on  this  subject.  Sec- 
tion 4283  declares  that  the  liability  of  the  owner  of  any  vessel  (for 
various  acts  and  things  mentioned)  shall  "in  no  case"  exceed  the 
value  of  his  interest  in  the  vessel  and  her  freight  then  pending.  When 
it  says  "in  no  case,"  does  it  mean  that  for  each  case  of  "embezzlement, 
loss,  destruction,  collision,"  etc..  happening  during  the  whole  voyage, 
his  liability  may  extend  to  the  value  of  his  whole  interest  in  the  vessel? 
Twenty  cases  might  occur  in  the  course  of  a  voyage,  and  all  at  dift'er- 
ent  times.  Does  not  the  provision  made  in  section  4284,  for  compen- 
sation pro  rata  to  each  party  injured,  apply  to  all  cases  of  loss  and 
damage  happening  during  the  entire  voyage — happening,  that  is,  by 
the  fault  of  the  master  or  crew,  and  without  the  privity  or  knowledge 
of  the  owner?  Pending  freight  is  of  no  value  to  the  shipowner  until 
it  is  earned,  and  it  is  not  earned,  if  earned  at  all.  until  the  conclusion 
of  the  voyage.  Does  this  not  show  that  every  "case"  in  which  the 
principle  of  limited  liability  is  to  be  applied  means  every  voyage?  We 
think  it  does.  It  seems  to  us  that  the  fair  inference  to  be  drawn  from 
section  4283  is  that  the  voyage  defines  the  limits  and  boundary  of  the 
casus  or  case  to  which  the  law  is  to  be  applied. 

63  "As  explained  in  Tlie  Lottawanna.  21  Wall.  5."8.  22  L.  Ed.  G54  (1874). 
the  maritime  law  is  only  so  far  operative  in  any  country  as  it  is  adopted  by 
the  laws  and  usages  of  tliat  country ;  and  this  particular  rule  of  the  maritime 
law  had  never  been  adopted  in  this  countrv  until  it  was  enacted  by  statute." 
Bradley.  J.,  in  The  Scotland.  10.5  U.  S.  24.'2r>  L.  Ed.  1(XM  (1881). 

The  English  statute  (St.  53  Geo.  III.  c.  l.")0,  s.  1)  limited  liability  to  value 
of  ship  and  freight,  and  was  interpreted  to  mean  value  immediately  before 
the  cause  of  action  arose.  Wilson  v.  Dickson,  2  B.  &  Aid.  2  (1818).  By  Eng- 
lish Merchant  Shipping  Act  1894,  §  503,  a  shipowner's  liability  is  limited  for 
personal  injury  or  loss  of  life  to  £15  for  every  ton  of  his  ship's  tonnage,  and 
for  injury  to  property  to  £8  for  every  ton,  irrespective  of  the  value  of  the 
ship. 


Ch.  4)  LIMITATION    OF   LIABILITY.  477 

This  is  rendered  certain  by  the  language  of  section  4284,  which  is : 
"Whenever  any  such  embezzlement,  loss,  or  destruction  is  suffered  by 
several  freighters  or  owners  of  goods,  wares,  merchandise,  or  any 
property  whatever,  on  the  same  voyage,  and  the  whole  value  of  the 
vessel,  and  her  freight  for  the  voyage,  is  not  sufficient  to  make  com- 
pensation to  each  of  them,  they  shall  receive  compensation  from  the 
owner  of  the  vessel  in  proportion  to  their  respective  losses."  There 
may  be  more  than  one  case  of  embezzlement  during  the  voyage,  and 
more  than  one  case  of  loss  and  destruction,  and  they  may  happen  at 
different  and  successive  times,  yet  they  are  to  be  compensated  pro 
rata.  This  shows  conclusively  that  it  must  be  at  the  termination  of 
the  "voyage"  that  the  vessel  is  to  be  appraised,  and  the  freight  (if 
any  be  earned)  is  to  be  added  to  the  account  for  the  purpose  of  show- 
ing the  amount  of  the  owner's  liability. 

This  conclusion  is  corroborated  by  section  4285,  which  declares  that 
it  shall  be  a  sufficient  compliance  with  the  requirements  of  the  law  if 
the  owner  shall  transfer  his  interest  in  the  vessel  and  freight  to  a  trus- 
tee for  the  benefit  of  the  claimants.  In  most  cases  this  cannot  be  done 
until  the  voyage  is  ended ;  for,  until  then,  the  embezzlement,  loss,  or 
destruction  of  property  cannot  be  known.  And  this  was  manifestly 
the  maritime  law^ ;  for  by  that  law  the  abandonment  of  the  ship  and 
freight  (when  not  lost)  was  the  remedy  of  the  owners  to  acquit  them- 
selves of  liability,  and,  of  course,  this  could  only  be  done  at  the  ter- 
mination of  the  voyage.  If  the  ship  was  lost,  and  the  voyage  never 
completed,  the  owners  were  freed  from  all  liability.  Boulay-Paty, 
Droit  Com.  Alar.  tit.  3,  §  1,  pp.  263,  275  et  seq. ;  Emerig.  Contrats  a  la 
Grosse,  c.  4,  sec.  11,  §§  1,  2 ;  Valin,  Com.  liber  2,  tit.  8,  art.  2;  Con- 
solato  del  Mare,  cc.  34  (141),  186  (182),  227  (194),  239 ;  «*  2  Par- 
dessus'  Collection;   Cleirac,  Nav.  de  Rivieres,  art.  15. 

If,  however,  by  reason  of  the  loss  or  sinking  of  the  ship,  the  voyage 
is  never  completed,  but  is  broken  up  and  ended  by  causes  over  which 
the  owners  have  no  control,  the  value  of  the  ship  (if  it  has  any  value) 
at  the  time  of  such  breaking  up  and  ending  of  the  voyage  must  be 
taken  as  the  measure  of  the  owners'  liability.  In  most  cases  of  this 
character  no  freight  will  be  earned;  but  if  any  shall  have  been  earned, 
it  will  be  added  to  the  value  of  the  ship  in  estimating  the  amount  of 
the  owners'  liability.  These  consequences  are  so  obvious  that  no  at- 
tempt at  argument  can  make  them  any  plainer. 

If  this  view  is  correct,  it  follows,  as  a  matter  of  course,  that  any 
salvage  operations,   undertaken   for  the  purpose   of   recovering  from 

6*  By  the  provisions  of  tlie  Consolato  del  Mare  above  cited,  tlie  part  own- 
ers of  a  sliip  are  not  liable  beyond  their  shares  for  the  master's  fault  in 
stowing  goods  on  deck  which  leads  to  their  jettison,  or  in  providing  insuf- 
ficient equipment,  and  loss  of  the  vessel  discharges  them  even  for  money 
lioiTowed  by  the  master  in  a  distant  port  to  buy  sujiplies.  "Let  him  beware 
how  he  lends  or  not,  for  the  part  owners  have  lost  enough  since  each  has 
lost  his  share." 


47S  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

the  bottom  of  the  sea  any  portion  of  the  wreck,  after  the  disastrous 
ending  of  the  voyage  as  above  supposed,  can  have  no  effect  on  the 
question  of  the  HabiHty  of  the  owners.  Their  HabiHty  is  fixed  when 
the  voyage  is  ended.  The  subsequent  history  of  the  wreck  can  only 
furnish  evidence  of  its  vahie  at  that  point  of  time.  And  it  makes  no 
difference,  in  this  regard,  whether  the  salvage  is  effected  by  the  own- 
ers, or  by  any  other  persons.  Having  fixed  the  point  of  time  at  which 
the  value  is  to  be  taken,  the  statute  does  the  rest.  It  declares  that 
the  liability  of  the  owner  shall  in  no  case  exceed  the  amount  or  value 
of  the  interest  of  such  owner  in  such  vessel,  and  her  freight  then  pend- 
ing. If  the  vessel  arrives  in  port  in  a  damaged  condition,  and  earns 
some  freight,  the  value  at  that  time  is  the  measure  of  liability;  if  she 
goes  to  the  bottom,  and  earns  no  freight,  the  value  at  that  time  is 
the  criterion.  And  the  benefit  of  the  statute  may  be  obtained  either 
by  abandoning  the  vessel  to  the  creditors  or  persons  injured,  or  by 
having  her  appraisement  made,  and  paying  the  money  into  court,  or 
giving  a  stipulation  in  lieu  of  it,  and  keeping  the  vessel.  This  double 
remedy  given  by  our  statute  is  a  great  convenience  to  all  parties.  It 
does  not  make  two  measures  or  standards  of  liability,  for  the  measure 
is  the  same  whichever  course  is  adopted,  but  it  enables  the  owner  to 
lay  out  money  in  recovering  and  repairing  the  ship  without  increasing 
the  burden  to  which  he  is  subjected. 

It  follows  from  this  that  the  proper  valuation  of  the  steamer  was 
taken  in  the  court  below,  namely,  the  value  which  she  had  when  she 
had  sunk,  and  was  lying  on  the  bottom  of  the  sea.  That  was  the  ter- 
mination of  the  voyage.     *     *     * 

Affirmed.*'^ 

65  The  parts  of  the  opinion  omitted  include  passages  expressing  the  holding 
of  a  bare  majority  of  the  court  that  the  owner's  liability  was  not  increased 
by  his  being  indemnified  by  insurance  for  the  loss  of  his  ship.  Compare 
O'Brien  v.  Miller,  108  U.  S.  "287,  18  Sup.  Ct.  140.  42  L.  Ed.  4t;i>  (1897).  which 
holds,  in  substance,  that  where  a  ship  has  been  tortiously  sunk,  and  its  owner 
reimbursed  by  the  tort-feasor  for  the  loss,  the  sum  so  received  is  a  part  of 
the  "value"  of  the  ship. 

If  a  shipowner  has  had  an  opportunity  at  the  end  of  a  voyage  to  discharge 
claims  against  him  by  surrendering  his  vessel,  he  is  not  relieved  from  lia- 
bility on  those  claims  by  her  loss  upon  a  subsequent  voyage.  The  Puritan 
(D.  C.)  94  Fed.  365  (1899).  A  shipowner  cannot  limit  lialnlity  uijon  his  per- 
sonal contract  for  supplies  to  his  ship.  Gokey  v.  Fort  (U.  C.)  44  Fed.  3t;4 
(1890).  The  limited  liability  act  is  available  as  a  defense  in  a  state  court, 
and  this  is  true,  even  though,  as  in  an  action  for  causing  death,  the  right  of 
action  is  conferred  by  a  state  law.  and  the  state  Constitution  declares  that 
the  liabilitv  shall  not  be  limited  to  less  than  actual  damages.  Loughlin  v, 
McCaulley.^186  Pa.  517,  40  Atl.  1020,  48  L.  R.  A.  33.  G5  Am.  St.  Rep.  872  (1898). 
But  the  act  regulates  only  maritime  liabilities;  that  is  to  say,  such  causes 
of  action  as  might  be  enforced  in  a  court  of  admiralty  and  maritime  juris- 
diction. It  does  not  apply  to  a  right  of  action  for  damage  to  a  building  on 
land  by  fire  caused  by  negligence  on  a  ship.  Goodrich  Transportation  Co.  v. 
Gagnon  (C.  C.)  36  Fed.  123  (1888).  For  othfer  cases  under  the  act,  see  4  Fed. 
St.  Ann.  839-854. 


Ch.  4)  LIMITATION    OF   LIABILITY.  ^79 

THE  SILVIA. 

(Supreme  Court  of  the  United  States.  1808.     171  U.  S.  4G2,  19  Sup.  Ct.  7,  43 

L.   E<1.  241.) 

Gr.\y,  J.  This  was  a  libel  in  admiralty,  filed  June  14,  1894,  in  the 
District  Court  of  the  United  States  for  the  Southern  District  of  New 
York,  by  the  Franklin  Sugar  Refining  Company,  a  corporation  or- 
ganized under  the  laws  of  the  state  of  Pennsylvania,  against  the  steam- 
ship Silvia,  of  Liverpool,  owned  by  the  Red  Cross  Line  of  steamers, 
to  recover  damages  for  injuries  to  a  cargo  of  sugar,  owned  by  the 
libelant,  which  had  been  shipped  on  or  about  February  15,  1894,  upon 
the  Silvia,  at  Matanzas,  Cuba,  for  Philadelphia,  under  a  bill  of  lading, 
by  which  the  sugar  was  "to  be  delivered  in  the  like  good  order  and 
condition  at  the  port  of  Philadelphia  (the  dangers  of  the  seas  only 
excepted),"  upon  payment  of  agreed  freight,  "and  all  other  conditions 
as  per  charter  party  dated  New  York,  31st  January,  1894.'' 

The  charter  party,  which  had  been  made  and  concluded  at  Xew 
York,  January  31,  1894,  provided  that  the  Silvia,  then  at  Tucacas, 
Venezuela,  should  proceed  as  soon  as  possible  in  ballast  to  Matanzas 
for  a  voyage  thence  to  Philadelphia,  New  York,  or  Boston,  and  con- 
tained these  provisions :  "The  vessel  shall  be  tight,  staunch,  strong, 
and  in  every  way  fitted  for  such  a  voyage,  and  receive  on  board,  dur- 
ing the  aforesaid  voyage,  the  merchandise  hereinafter  mentioned  (the 
act  of  God,  adverse  winds,  restraint  of  princes  and  rulers,  the  queen's 
enemies,  fire,  pirates,  accidents  to  machinery  or  boilers,  collisions,  er- 
rors of  navigation,  and  all  other  dangers  and  accidents  of  the  .seas, 
rivers,  and  navigation,  of  whatever  nature  and  kind  soever,  during 
the  said  voyage,  always  excepted).  The  said  party  of  the  second  part 
doth  engage  to  provide  and  furnish  to  the  said  vessel  a  full  cargo, 
under  deck,  of  sugar  in  bags.  The  bills  of  lading  to  be  signed  with- 
out prejudice  to  this  charter." 

The  Silvia,  with  the  sugar  in  her  lower  hold,  sailed  from  Matanzas 
for  Philadelphia  on  the  morning  of  February  16,  1894.  The  com- 
partment between  decks  next  the  forecastle  had  been  fitted  up  to  carry 
steerage  passengers,  but  on  this  voyage  contained  only  spare  sails  and 
ropes,  and  a  small  quantity  of  stores.  This  compartment  had  four 
round  ports  on  each  side,  which  were  about  eight  or  nine  feet  above 
the  water  line  when  the  vessel  was  deep  laden.  Each  port  was  eight 
inches  in  diameter,  furnished  with  a  cover  of  glass  five-eighths  of  an 
inch  thick,  set  in  a  brass  frame,  as  well  as  with  an  inner  cover  or 
dummy  of  iron.  When  the  ship  sailed,  the  weather  was  fair,  and  the 
glass  covers  were  tightly  closed ;  but  the  iron  covers  were  left  open, 
in  order  to  light  the  compartment  should  it  become  necessary  to  get 
anything  from  it,  and  the  hatches  were  battened  down,  but  could  have 
been  opened  in  two  minutes  by  knocking  out  the  wedges.  In  the  after- 
noon of  the  day  of  sailing,  the  ship  encountered  rough  weather,  and 


480  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

the  glass  cover  of  one  of  the  ports  was  broken — whether  by  the  force 
of  the  seas  or  by  floating  timber  or  wreckage  was  wholly  a  matter  of 
conjecture — and  the  water  came  in  through  the  port,  and  damaged 
the  sugar. 

The  decree  of  the  District  Court  dismissed  the  libel,  and  was  affirm- 
ed by  the  Circuit  Court  of  Appeals.  Gl  Fed.  607 ;  35  U.  S.  App.  395. 
15  C.  C.  A.  36-1,  G8  Fed.  230.  The  libelant  appHed  for,  and  obtained, 
a  writ  of  certiorari  from  this  court. 

It  was  adjudged  by  this  court  at  the  last  term  that  the  act  of  Con- 
gress of  February  13,  1893  (chapter  105,  known  as  the  "Harter  Act" 
[U.  S.  Comp.  St.  1901,  p.  2946]),  has  not  released  the  owner  of  a 
ship  from  the  duty  of  making  her  seaworthy  at  the  beginning  of  her 
voyage.  The  Carib  Prince,  170  U.  S.  655,  IS  Sup.  Ct.  753,  42  L.  Ed. 
1181. 

But  the  contention  that  the  Silvia  was  unseaworthy  when  she  sailed 
from  Alatanzas  is  unsupported  by  the  facts.  The  test  of  seaworthi- 
ness is  whether  the  vessel  is  reasonably  fit  to  carry  the  cargo  which 
she  has  undertaken  to  transport.  The  portholes  of  the  compartment 
in  question  were  furnished  both  with  the  usual  glass  covers  and  with 
the  usual  iron  shutters  or  deadlights ;  and  there  is  nothing  in  the 
case  to  justify  an  inference  that  there  was  any  defect  in  the  construc- 
tion of  either.  When  she  began  her  voyage,  the  weather  being  fair, 
the  glass  covers  only  were  shut,  and  the  iron  ones  were  left  open  for 
the  purpose  of  lighting  the  compartment.  Although  the  hatches  were 
battened  down,  they  could  have  been  taken  off  in  two  minutes ;  and 
no  cargo  was  stowed  against  the  ports  so  as  to  prevent  or  embarrass 
access  to  them  in  case  a  change  of  weather  should  make  it  necessary 
or  proper  to  close  the  iron  shutters.  Had  the  cargo  been  so  stowed  as 
to  require  much  time  and  labor  to  shift  or  remove  it  in  order  to  get 
at  the  ports,  the  fact  that  the  iron  shutters  were  left  open  at  the  be- 
ginning of  the  voyage  might  have  rendered  the  ship  unseaworthy. 
But  as  no  cargo  was  so  stowed,  and  the  ports  were  in  a  place  where 
these  shutters  would  usually  be  left  open  for  the  admission  of  light, 
and  could  be  speedily  got  at  and  closed  if  occasion  should  require, 
there  is  no  ground  for  holding  that  the  ship  was  unseaworthy  at  the 
time  of  sailing.  Steel  v.  Steamship  Co.,  3  App.  Cas.  72,  82,  90,  91 ; 
Hedley  v.  Steamship  Co.  [1892]  1  O.  B.  58,  65;  Id.,  [1894]  App. 
Cas.  222,  227,  228;    Gilroy  v.  Price  [1893]  App.  Cas.  56,  64. 

The  third  section  of  the  Harter  act  provides  that,  "if  the  owner  of 
any  vessel  transporting  merchandise  or  property  to  or  from  any  port 
in  the  United  States  of  America  shall  exercise  due  diligence  to  make 
the  said  vessel  in  all  respects  seaworthy  and  properly  manned,  equip- 
ped, and  supplied,  neither  the  vessel,  her  owner  or  owners,  agent  or 
charterers,  shall  become  or  be  held  responsible  for  damage  or  loss 
resulting  from  faults  or  errors  in  navigation  or  in  the  management 
of  said  vessel."     27  Stat.  445. 


Cll.  4)  LIMITATION    OF   LIABILITY.  481 

This  provision,  in  its  terms  and  intent,  includes  foreign  vessels 
carrying  goods  to  or  from  a  port  of  the  United  States.  The  Scot- 
land, 105  U.  S.  24,  30,  26  L.  Ed.  1001;  The  Carib  Prince,  above 
cited. 

Not  only  had  the  owners  of  the  Silvia  exercised  due  diligence  to 
make  her  seaworthy,  but,  as  has  been  seen,  she  was  actually  seaworthy 
when  she  began  her  voyage. 

This  case  does  not  require  a  comprehensive  definition  of  the  words 
"navigation"  and  "management"  of  a  vessel,  within  the  meaning  of 
the  act  of  Congress.  They  might  not  include  stowage  of  cargo,  not 
affecting  the  fitness  of  the  ship  to  carry  her  cargo;  but  they  do  in- 
clude, at  the  least,  the  control,  during  the  voyage,  of  everything  with 
which  the  vessel  is  equipped  for  the  purpose  of  protecting  her  and 
her  cargo  against  the  inroad  of  the  seas;  and,  if  there  was  any  neg- 
lect in  not  closing  the  iron  covers  of  the  ports,  it  was  a  fault  or  error 
in  the  navigation  or  in  the  management  of  the  ship.  This  view  ac- 
cords with  the  result  of  the  English  decisions  upon  the  meaning  of 
these  words.  Good  v.  Association,  L.  R.  6  C.  P.  563;  The  Wark- 
worth,  9  Prob.  Div.  20,  145 ;  Carmichael  v.  Association,  19  Q.  B.  Div. 
242;  Canada  Shipping  Co.  v.  British  Shipowners'  Association,  23  Q. 
B.  Div.  342;  The  Ferro,  [1893]  Prob.  38;  The  Glenochil,  [1896] 
Prob.  10. 

In  the  case,  cited  by  the  appellant,  of  Dobell  v.  The  Rossmore  Co., 
[1895]  2  Q.  B.  408,  414,  the  ship  was  unseaworthy  at  the  time  of 
sailing,  by  reason  of  the  cargo  having  been  so  stowed  against  an  open 
port  that  the  port  could  not  be  closed  without  removing  a  considerable 
part  of  the  cargo ;  and  Lord  Esher,  M.  R.,  upon  that  ground,  distin- 
guished that  case  from  the  decision  of  the  circuit  court  of  appeals  in 
the  present  case. 

Judgment  affirmed.^* 

66  Compare  Knott  v.  Botanv  Mills.  179  U.  S.  69,  21  Sup.  Ct.  30,  4.5  L.  Ed. 
90  (1900) ;  International  Nav.  Co.  v.  Farr,  181  U.  S.  218,  21  Sup.  Ct.  591,  45  L. 
Ed.  830  (1901).  See  The  Harter  Act,  16  Harvard  Law  Rev.  157;  The  Wildcroft, 
201  U.  S.  378,  26  Sup.  Ct.  467,  50  L.  Ed.  794  (1906);  4  Fed.  St.  Ann.  854-864.  The 
Harter  act  also  relieves  the  vessel  and  her  owner,  upon  the  same  condition 
of  diligence  to  make  seaworthy,  from  responsibility  for  loss  resulting  "from 
saving  or  attempting  to  save  life  or  property  at  sea,  or  from  any  deviation 
In  rendering  such  service." 

Green  Caeb. — 31 


482  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

CHAPTER  V 
DURATION  OF  LIABILITY 


SECTIOX  1.— WHEN  LIABILITY  BEGINS 


MERRITT  V.  OLD  COLONY  &  N.  RY.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  ISG.j.     11  Allen,  SO.) 

Tort  against  a  railroad  corporation  to  recover  for  damages  done  to 
a  caloric  engine  sent  by  the  plaintiff  to  the  depot  of  the  defendants 
in  South  Boston  for  transportation  to  South  Abington,  while  being 
loaded  upon  th^^  cars,     *     *     * 

The  jury  i^...rned  a  verdict  for  the  plaintiff,  and  the  defendants 
alleged  exceptions.^ 

Dewey,  J.  The  instructions  given  were  correct,  and  sufficiently 
full  to  guide  the  jury  as  to  their  verdict. 

The  plaintiff  introduced  evidence  tending  to  show  that  the  engine 
was  carried  by  a  truckman  to  the  freight  station  of  the  defendants, 
to  be  transported  to  South  Abington;  that  notice  of  its  arrival  was 
given  to  the  freight  agent,  who  directed  the  truckman  to  drive  near 
a  derrick  by  a  certain  track  at  which  heavy  articles  were  laden  upon 
the  cars,  and  there  wait  till  the  men  came,  when  they  would  run  in  a 
car  and  put  it  on  board;  that  the  truckman  followed  this  order,  and 
the  men  came,  run  in  a  car,  and  commenced  loading  the  engine,  the 
agent  of  the  defendants  superintending  and  directing  the  work,  and 
the  truckman  being  present  also,  giving  assistance  to  prevent  the 
chain  which  had  been  placed  around  the  engine  from  slipping.  The 
mode  of  placing  the  engine  upon  the  cars  by  means  of  a  derrick  was 
an  arrangement  of  the  defendants,  and  they  provided  the  derrick  for 
that  purpose. 

The  evidence  on  the  part  of  the  defendants,  as  to  the  superintend- 
ence and  control  of  the  operation  of  removing  the  engine  from  the 
sled  of  the  truckman  to  the  cars,  conflicted  with  that  of  the  plaintiff; 
and  this  was  submitted  to  the  jury.  It  became  necessary  to  ascertain 
at  what  point,  as  respects  the  rights  of  the  bailor,  the  truckman's  re- 
sponsibility for  the  safe  transportation  of  the  engine  ceased,  and  when 
the  same  was  cast  upon  the  defendants.  The  court  properly  ruled 
that  it  was  when  the  engine  was  delivered  to  and  accepted  by  them 
for  the   purpose   of   transportation,   and  that   in  order  to   constitute 

1  Part  of  the  statement  of  facts  has  been  omitted. 


Ch.  5)  DURATION    OF  LIABILITY.  483 

such  delivery  and  acceptance  it  must  appear  that  the  defendants  had 
through  their  agent  taken  and  assumed  the  charge  and  custody  of 
the  engine  for  the  purpose  of  transportation.     Story  on  Baihn.  §  453. 

Of  course  in  deciding  the  question  when  the  custody  does  thus  at- 
tach, much  will  depend  upon  the  manner  in  which  they  receive  goods 
for  transportation,  the  provision  they  make  for  raising  heavy  articles 
into  their  cars,  and  the  active  participation  of  the  agent  of  the  com- 
pany in  reference  to  the  same. 

As  to  warehousemen,  it  has  been  held  that  as  soon  as  the  goods 
arrive  and  the  crane  of  the  warehouse  is  applied  to  them  to  raise 
them  into  the  warehouse,  the  liability  of  the  warehouseman  commences, 
and  it  is  no  defence  that  they  are  afterwards  injured  by  falling  into 
the  street  from  the  breaking  of  the  tackle.    Story  on  Bailm.  §  445. 

In  the  opinion  of  the  court,  the  instructions  were  sufficiently  full, 
and  the  further  instructions  asked  were  properly  refused. 

Exceptions  overruled. 


GREEN  V.  MILWAUKEE  &  ST.  P.  R.  CO. 

(Supreme  Court  of  Iowa,  1874.     38  Iowa,   100.) 

Action  to  recover  the  value  of  a  trunk  and  contents  of  clothing 
alleged  to  have  been  lost  or  destroyed  while  in  possession  of  defend- 
ant as  a  carrier.  There  was  a  trial  to  a  jviry,  and  a  verdict  rendered 
against  plaintiff  under  an  instruction  of  the  court  to  the  effect  that 
there  was  no  evidence  showing  that  the  trunk  was  delivered  to  de- 
fendant or  its  agents.  From  a  judgment  rendered  upon  this  verdict 
plaintiff  appeals. 

Beck,  C.  J.  The  evidence  disclosed  the  fact  that  plaintiff,  desir- 
ing to  take  passage  by  an  early  morning  train  on  defendant's  road  at 
Boscobel,  in  the  state  of  Wisconsin,  for  Decorah,  sent  her  trunk  the 
evening  before  by  a  drayman  to  defendant's  depot.  It  was  left  by 
the  drayman  in  the  waiting  room,  and  as  there  were  no  employes  of 
defendant  about  the  premises,  no  notice  thereof  was  given  to  any  one. 
This  was  after  business  hours  in  the  evening.  It  was  shown  that 
plaintiff  had  quarterly,  for  three  years,  been  in  the  habit  of  making 
the  same  journey  she  was  about  to  take,  and  had  always  sent  her  trunk 
the  evening  before,  as  she  did  in  this  case,  and  that  other  travelers 
were  in  the  habit  of  doing  the  same  thing  when  they  went  by  the  early 
train.  The  drayman  testified  that  he  had  often  left  baggage  at  the 
depot  under  similar  circumstances,  but  that  his  custom  was  to  notify 
the  depot  agent  or  servants  of  defendant. 

Upon  this  evidence  the  court  directed  the  jury  that  there  was  no 
proof  of  the  delivery  of  the  trunk  to  defendant  or  its  servants. 

It  is  not  claimed  that  defendant  would  be  liable  without  a  delivery, 
either  actual  or  constructive,  of  the  property  to  its  agent  or  servant. 
That  a  delivery  may  be  made  at  the  proper  place  of  receiving  such 


484  EXCErTIOXAL   LIABILITY   OF   COMMON  CARRIER.  (Part    4 

baggage  under  the  express  assent  or  authority  of  the  carrier  without 
notice  to  its  employes  will  not,  we  presume,  be  disputed.  It  is  equally 
clear  upon  principle  that  this  assent  may  be  presumed  from  the  course 
of  business  or  custom  of  the  carrier.  Upon  evidence  of  this  character 
contracts  based  upon  business  transactions  are  constantly  established. 
The  citation  of  authority  is  not  required  to  support  this  position.  See 
Merriam  v.  Hartford  &  N.  H.  R.  R.  Co.,  20  Conn.  354,  53  Am.  Dec. 
344. 

The  instruction  which  is  the  foundation  of  plaintiff's  objection  di- 
rects the  jury  that  there  was  no  evidence  of  a  delivery  of  the  trunk 
to  the  defendant.  In  this  we  think  there  is  error.  There  was  evidence 
tending  to  show  a  course  of  business  on  the  part  of  defendant,  a  cus- 
tom, to  receive  baggage  left  at  the  station  house,  as  in  this  case,  with- 
out notice  to  plaintiff's  servants.  Upon  evidence  of  this  character,  it 
was  proper  that  the  facts  should  have  been  left  to  the  determination 
of  the  jury,  whether  there  had  been  a  delivery  of  the  property  within 
the  rules  above  announced — whether  a  course  of  business,  a  custom, 
had  been  established,  to  the  effect  that  a  delivery  of  baggage  at  the 
station  house  without  notice,  was  regarded  by  the  defendant  as  a 
delivery  to  its  servants,  and  whether  plaintiff's  trunk  was  received  un- 
der this  custom.  It  is  a  well-settled  rule  that  the  courts  cannot  de- 
termine upon  the  sufficiency  of  evidence  to  authorize  a  verdict  where 
there  is  a  conflict,  or  some  evidence  upon  the  whole  case.  In  such  a 
case  an  instruction  to  the  effect  that  there  is  no  evidence,  and  directing 
a  verdict  accordingly,  is  erroneous.  Way  v,  Illinois  Cent.  R.  R.  Co., 
35  Iowa,  585. 

The  judgment  of  the  district  court  is  reversed,  and  the  cause  re- 
manded.^ 


TATE  v.  YAZOO  &  U.  V.  R.  CO. 

(Supreme  Court  of  Mississippi,  3901.     78  Miss.  842,  29  South.  392,  84  Am. 

St.  Eep.   649.) 

Terral,  J.  The  appellee  in  this  case  recovered  judgment  by  a  per- 
emptory instruction,  and  the  appellants  insist  that  a  peremptory  in- 
struction should  have  been  given  in  their  behalf.  On  the  28th  of 
September,  1897,  the  appellants  loaded  upon  a  car  of  the  defendant 
company,  at  Clack's  station,  twenty- four  bales  of  cotton.    The  loading 

2  Compare  Goldberg  v.  Ahnapee,  etc.,  Ry.  Co..  105  Wis.  1,  80  N.  W.  920,  47 
L..  R.  A.  221,  76  Am.  St.  Rep.  899  (1899);  Gregory  v.  Webb,  40  Tex.  Civ.  App. 
360,  89  S.  W.  1109  (1905). 

In  Woods  V.  Devin,  13  111.  746,  56  Am.  Dec.  483  (1852),  defendant  was  held 
liable  as  a  common  carrier  for  the  loss  of  a  hand  bag  delivered  to  him  by 
an  intending  passenger,  though  the  passenger  did  not  pay  fare,  and,  because 
of  the  loss  of  the  bag.  did  not  make  the  journey. 

In  Stewart  v.  Gracy,  93  Tenn.  314,  27  S.  W.'6(>i  (189.3),  a  common  carrier, 
who  had  accepted  warehouse  receipts  for  tobacco  and  had  taken  part  of  the 
tobacco  from  the  warehouse,  was  held  not  liable  for  the  loss  of  tobacco  which 
remained  in  the  warehouse. 


Ch.  5)  DURATION    OP   LIABILITY.  485 

of  the  car  was  finished  after  sundown,  and  after  the  local  freight 
train  of  that  day,  which  was  accustomed  to  take  loaded  cars  from 
Clack's,  had  passed  on  its  return  trip  to  ^lemphis,  and  no  other  local 
freight  train,  by  which  alone  cotton  was  shipped  from  Clack's,  would 
arrive  at  said  station  until  the  evening  of  the  next  succeeding  day. 
Early  on  the  morning  of  the  29th  of  September  the  car  load  of  cotton 
was  wholly  consumed  by  fire,  and  this  suit,  being  a  consolidation  of 
five  suits,  is  to  recover  its  value.  Tate  &  Co.  operated  a  public  gin  at 
Clack's,  where  the  defendant  company  had  a  siding,  but  it  had  no 
station  house  or  agent  at  that  point.  Japson  &  Keesee,  who  were  in 
charge  of  Tate  &  Co.'s  gin  and  plantation  at  Clack'"s,  testified  that 
when  it  was  desired  to  ship  cotton,  one  of  them  would  inform  the 
conductor  of  the  local  freight  train,  and  the  conductor  would  set  out 
there  an  empty  car  for  loading,  and  that  when  the  car  was  loaded 
and  ready  for  transportation,  the  local  freight  train  desired  to  take 
the  loaded  car  would  be  flagged,  and  the  conductor  of  it  informed 
that  the  car  was  ready  for  transportation,  when  the  conductor  would 
sign  the  shipper's  loading  account,  if  found  correct,  and  attach  the 
car  to  his  train,  and  transport  it  to  its  destination. 

The  contention  of  the  appellants  is  that  they  had  delivered  the 
twenty-four  bales  of  cotton  to  the  defendant  company,  and  that  the 
cotton  was  burned  while  in  its  custody;  that  the  cotton  was  actually 
or  constructively  delivered  to  the  railway  company,  and  that  it  is 
chargeable  for  the  loss.  We  think,  however,  that  it  is  quite  clear  that 
the  railway  company  had  never  come  into  possession  of  the  cotton 
for  transportation.  The  car,  it  was  true,  was  the  car  of  the  company, 
and  it  was  placed  upon  the  company's  siding  at  Clack's  for  being 
loaded,  and  the  cotton  was  loaded  into  the  car,  but  no  servant  of  the 
company  had  any  notice  of  the  car  being  loaded  and  ready  for  ship- 
ment. Keesee  testified  that  his  recollection  was  (the  trial  being  had 
some  time  after  the  loss),  that,  when  the  car  was  loaded,  a  man  was 
left  there  with  it,  with  the  shipping  account  filled  out,  in  order  to  stop 
the  train  and  get  the  conductor's  receipt  for  it.  And  it  appears  that 
the  flagging  of  the  local  freight  train  and  delivery  of  the  shipper's 
loading  account  to  the  conductor  was  an  essential  feature  of  the  ship- 
ping of  cotton  at  Clack's.  But  Japson  and  others  conclusively  show 
that  the  local  freight  train  for  that  day  had  already  passed  before  the 
car  was  loaded,  and  no  other  train  that  could  have  been  expected  to 
take  the  car  would  come  by  there  until  after  the  car  was  burned. 
There  was  no  constructive  delivery  of  the  cotton  to  the  railroad  com- 
pany. Its  proper  servant,  the  conductor  of  the  local  freight  train, 
by  which  it  was  desired  to  have  this  cotton  transported,  knew  nothing 
of  its  being  loaded  into  the  car  for  shipment,  and  there  could  be  no 
acceptance  of  the  cotton  for  shipment  without  such  knowledge,  unless, 
indeed,  there  had  been  an  agreement  between  the  parties  making  the 
mere  loading  of  the  car  an  acceptance  of  the  freight  for  transporta- 
tion. 


486  EXJKl'TIOXAL   LIAniLITY   OF   CO.M.MON  CARRIER.  (Part   4 

But  no  such  agreement  was  shown.  On  the  contrary,  the  clear 
course  of  deahng  between  the  parties  at  Clack's  showed  that  the  ship- 
per was  to  flag  the  proper  local  freight  train,  and  deliver  to  the  con- 
ductor of  the  train  the  car  to  be  transported,  with  the  shipper's  load- 
ing account  thereof.  A  bill  of  lading  is  not  essential  to  charge  the 
carrier  with  the  duty  of  safely  transporting  the  property  delivered 
for  carriage,  but  the  doing  of  the  several  acts  entitling  the  shipper  to 
a  bill  of  lading  is  necessary  to  charge  the  carrier  with  the  safety  of  the 
articles  intrusted  to  him.  In  this  case,  according  to  the  course  of 
dealing  between  the  parties,  there  could  have  been  no  delivery  of  the 
cotton  to  the  railroad  company,  until  it  was  loaded  and  the  local 
freight  train  conductor  had  notice  of  the  items  of  freight,  its  destina- 
tion and  of  its  readiness  for  transportation.  Parties  desiring  to  hold 
common  carriers  to  a  stricter  responsibility  than  that  impos?(l  by  the 
common  law  should  provide  therefor  by  contract,  for,  unless  bound 
by  contract  otherwise,  a  carrier  is  not  responsible  for  the  safety  of 
articles  intended  for  shipment  until  a  delivery  of  them  to  him,  and  an 
acceptance  thereof,  and  there  can  be  no  acceptance  until  he  has  knowl- 
edge of  their  readiness  for  transportation,  and  the  shipper's  desire 
therefor;  Hutchinson  on  Carriers,  c.  4;  Schouler  on  Bailments  and 
Carriers,  c.  3  ;  Angell  on  Carriers,  c.  140 ;  2  Kent's  Commentaries, 
608 ;  Illinois  Cent.  R.  R.  Co.  v.  Smyser,  38  111.  354,  87  Am.  Dec.  301, 
303. 

Affirmed.^ 


ST.  LOUIS.  A.  &  T.  H.  R.  CO.  v.  MONTGOMERY. 

(Supreme  Court  of  Illinois,  18GG.     30  111.  335.) 

Lawrence,  J.*  This  was  an  action  upon  the  case  brought  by  the 
appellee  against  the  appellant  to  recover  the  value  of  a  quantity  of 
hay  burned  upon  the  cars  of  the  appellant.  It  appears  from  the  evi- 
dence that  the  hay  was  placed  on  the  platform  cars  on  Friday,  and 
on  Saturday  morning  the  conductor  of  the  freight  train  was  about  to 
take  it  away,  when  the  plaintiff  said  he  did  not  wish  it  to  go  until  he 

3  Compare  Railway  Co.  v.  Murphy.  GO  Ark.  3.33.  ,30  S.  W.  410.  40  Am.  St. 
Rep.  202  (1S9.5);  Tine  Bluff,  etc..  R.  Co.  v.  MeKenzie,  75  Ark.  lOO.  S<;  S.  W. 
834  (190.5).  In  the  latter  case.  Battle.  J.,  said:  "Here  appellant,  in  pursu- 
ance of  Its  custom,  at  the  request  of  the  appellee,  had  left  cars  on  its  side 
track,  with  the  agreement,  implied,  if  not  e.xpressed.  that  it  would  remove 
the  cars  the  next  day.  if  they  were  loaded,  and  carry  them  on  to  their  des- 
tination. Notice  of  that  fact  was  given  to  appellant.  The  cars  were  loaded 
and  closed.  The  control  and  possession  of  their  contents  were  completely 
surrendered  to  the  railroad  company.  Nothing  remained  to  be  done  by  the 
appellee.  The  cotton  and  seed  awaited  the  coming  of  the  appellant's  train. 
The  cars  were  in  its  possession,  and  were  the  receptacles  in  which  it  ac- 
cepted the  delivery  of  the  cotton  and  seed.  They  were  left  there  with  that 
purpose  and  with  that  understanding.  The  delivery  was  complete  and  ap- 
pellant is  responsible  for  their  loss." 

4  Part  of  the  opinion  has  been  omitted. 


Ch.  5)  DURATION    OF   LIABILITY.  487 

could  see  J\Ir.  Ketchum,  to  whom  he  had  sold  it.  In  consequence  of 
his  request  the  cars  were  left,  and  the  next  day  the  hay  was  ignited 
by  sparks  thrown  from  the  locomotive  of  a  passing  passenger  train, 
and  a  considerable  portion  was  consumed.  The  plaintiff  recovered  a 
verdict  on  the  trial,  and  the  defendant  appealed. 

There  is  nothing  in  the  record  showing  carelessness  on  the  part  of 
the  appellant,  except  the  single  fact  of  leaving  the  hay  standing  upon 
the  side  track  exposed  to  the  sparks  of  a  passing  train,  and  this  care- 
lessness and  exposure  resulted  from  the  express  request  of  the  plain- 
tiff.    *     *     * 

Neither  can  the  company  be  made  responsible  through  its  liability 
as  a  common  carrier.  A  common  carrier,  it  is  true,  is  liable  for  all 
losses  not  arising  from  the  "act  of  God,"  or  the  public  enemy,  in  nei- 
ther of  which  categories  would  the  loss,  in  the  case  before  us,  fall. 
But  the  technical  liability  of  a  common  carrier  does  not  attach  until 
the  delivery  to  him  of  the  property  is  complete.  If,  for  example,  the 
same  person  is  common  carrier  and  warehouseman,  and  he  receives 
goods  to  be  forwarded  when  he  has  orders  from  the  owner,  his  lia- 
bility in  the  meantime  is  that  of  a  warehouseman,  and  not  that  of  a 
common  carrier.  He  must  exercise  reasonable  care,  but  he  is  not  an 
insurer  against  all  losses  except  those  arising  from  the  "act  of  God" 
and  the  public  enemy.  Angell  on  Carriers,  §  134,  and  cases  there 
cited.  That  was.  in  principle,  the  position  of  the  defendants  in  the 
present  case.  They  had  received  the  goods  and  placed  them  on  a  car, 
and  the  plaintiff,  with  full  knowledge  of  the  risks  to  which  they  might 
be  exposed  from  passing  trains,  requested  that  they  should  not  be 
forwarded  until  he  had  seen  Ketchum.  From  the  moment  that  re- 
quest was  made,  and  while  the  defendants  were  detaining  the  hay  in 
consequence  of  it,  they  were  only  liable  for  losses  which  might  have 
been  guarded  against  by  the  exercise,  on  their  part,  of  ordinary  care 
and  diligence.     *     *     * 

Judgment  reversed. 


WADE  V.  WHEELER. 

(Supreme  Court  of  Xew  York.  1870.     3  Lans.  201.) 

This  is  an  appeal  from  a  judgment  entered  upon  the  report  of  a 
referee.     *     *     * 

Parker,  J.^  *  *  ^■^  The  defendants,  as  trustees  of  the  second 
mortgage  bondholders  of  the  Northern  Railroad  Company,  were  en- 
gaged in  the  business  both  of  operating  the  railroad  and  of  storing 
grain.  They  had  a  warehouse  at  Ogdensburgh  where  they  stored 
grain  to  await  the  orders  of  the  owners.  When  an  order  for  the 
shipment  of  grain  was  given,  if  accepted,  defendants  entered  it  upon 

B  Part  of  the  opinion  has  been  omitted. 


488  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4: 

their  books,  at  the  warehouse,  and  forwarded  the  grain  upon  the  rail- 
road to  the  person  to  whom  it  was  ordered  without  any  further  act 
on  the  part  of  the  consignor.  When  an  order  was  put  in  for  grain 
to  be  sent  forward,  the  charge  for  storage  ceased.     *     *     * 

The  defendants  received  the  wheat  as  warehousemen,  and  continued 
to  hold  it,  as  such,  until  they  assumed  the  new  relation  of  carriers. 
The  question  is,  when  did  such  new  relation  begin  ?  The  answer  must 
be,  I  think,  at  the  time  when  they  accepted  the  order  to  transport  the 
wheat  to  Potsdam.  From  that  time  they  ceased  to  charge  for  storage, 
and  held  it  on  storage,  no  longer.  Their  holding  it  at  the  warehouse 
now  was  not  for  the  benefit  of  the  owner,  but  for  their  own  conven- 
ience, and  as  accessory  to  its  transportation.  The  circumstance  that  de- 
fendants had  not,  as  both  parties  knew  and  understood,  cars  ready  for 
its  immediate  shipment,  and  that  it  was  to  take  its  time,  after  other 
grain,  which  had  been  ordered  forward  before  it,  does  not  at  all  change 
the  result ;  for  still  it  was  held  merely  for  carriage,  to  be  forwarded 
without  further  orders,  at  the  earliest  practicable  moment.  In  Coyle  v. 
Western  Railroad  Corporation,  47  Barb.  152, 153,  154,  the  court  say: 
"There  can  be  no  doubt  that  the  barrels  were  placed  by  the  defendant's 
employes  in  the  freight  house,  for  the  convenience  of  the  company,  with 
a  view  and  for  the  purpose  of  facilitating  their  transportation  to  the 
place  of  destination,  for  which  they  were  designed,  and  to  which  they 
were  directed.  These  were  not  placed  there  to  remain  for  any  period 
of  time,  but  to  be  forwarded  at  the  earliest  practicable  period.  Under 
such  circumstances  it  is  manifest  that  the  defendant  received  the 
property  for  the  purpose  of  transportation,  and  not  as  a  warehouse- 
man, and  that  the  company  is  liable  as  a  common  carrier."  So  in 
Blossom  V.  Griffin,  13  N.  Y.  569,  572,  67  Am.  Dec.  75,  the  court  say: 
"The  defendants  were  both  carriers  and  warehousemen.  In  such  a 
case  it  is  well  settled  that  if  the  deposit  of  the  goods  in  the  warehouse 
is  a  mere  accessory  to  the  carriage,  in  other  words,  if  they  are  de- 
posited for  the  purpose  of  being  carried  without  further  orders,  the 
responsibility  of  the  carrier  begins  from  the  time  they  are  received." 
In  the  case  at  bar,  it  is  true,  the  grain  was  not  deposited  in  the  ware- 
house for  the  purpose  of  being  carried  without  further  orders,  but  it 
was  already  there  when  the  defendants  undertook  to  carry  it  to  Pots- 
dam wdthout  further  orders.  And  where  goods  are  delivered  to  a 
carrier  to  be  kept  in  his  warehouse  until  further  orders,  the  liability 
of  the  carrier  will  not  attach  until  the  goods  are  ordered  to  be  carried ; 
but  when  this  order  is  given  the  responsibility  of  the  carrier  attaches  at 
once.    2  Redfield  on  Railways,  §  247. 

The  defendants,  on  accepting  the  order  to  carry  the  wheat  to  Pots- 
dam, assumed  the  same  relation  as  though  they  then  received  it  for 
that  purpose.  jManifestly  it  can  make  no  difference  that  the  defend- 
ants already  had  possession  when  they  undertook  to  transport  the 
wheat.  Did  they,  from  the  acceptance  of  the  order,  hold  it  only  for 
the  purpose  of  transporting  it  without  further  direction?    This  is  the 


Ch.  5)  DURATION    OF  LIABILITY.  480 

test,  as  shown  by  all  the  authorities.  And  see  1  Smith's  Leading  Cases, 
393,  and  cases  cited.  Under  this  test,  I  see  no  reason  to  doubt  that  the 
defendants  were,  at  the  time  of  the  loss,  holding  the  wheat  as  common 
carriers,  and  no  longer  as  warehousemen,  and  were,  therefore,  liable. 

The  judgment  must  be  reversed  and  a  new  trial  granted,  costs  to 
abide  the  event. 

New  trial  granted.* 


WEBSTER  V.  FITCHBURG  R.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1894.    161  Mass.  2DS,  37  N.  E.  165, 

24  L.  R.  A.  521.) 

Action  by  Elizabeth  S.  Webster,  administratrix  of  the  estate  of 
William  Webster,  against  the  Fitchburg  Railroad  Company,  for  dam- 
ages for  the  death  of  intestate  by  defendant's  negligence.  Verdict 
directed  for  defendant,  and  plaintiff  excepts. 

Knowlton,  J.  At  the  trial  the  plaintiff  relied  solely  on  her  count 
under  Pub.  St.  c.  112,  §  212,'^  in  which  she  alleged  that  her  intestate 
was  a  passenger  on  the  defendant's  railroad,  and  the  only  question  in 
the  case  is  whether  there  was  evidence  to  warrant  the  jury  in  finding 
that  he  was  a  passenger.  He  had  in  his  pocket  a  10-trip  ticket,  which 
entitled  him  to  ride  over  the  defendant's  railroad  between  Boston  and 
the  station  in  Somerville  where  the  accident  happened ;  and,  immedi- 
ately before  he  was  struck  and  killed,  he  was  running  very  rapidly, 
from  the  direction  of  the  public  street,  across  the  defendant's  premises,, 
outside  of  the  passenger  station,  to  a  track  on  which  was  an  incoming 

6  Compare  Schmidt  v.  Chicago  &  N.  W.  R.  Co.,  90  Wis.  504,  63  X.  W.  1057 
(1895). 

In  the  following  cases  liability  as  common  carrier  was  held  to  attach  on 
acceptance  of  the  goods:  Clarke  v.  Needles,  25  Pa.  338  (1855),  carrier's  canal 
closed  for  repairs  to  aqueduct;  Shaw  v.  No.  Pac.  R.  Co.,  40  Minn.  144,  41 
N.  W.  548  (1889),  baggage  held  over  with  owner's  consent  for  later  train; 
London,  etc.,  Co.  v.  Rome,  etc.,  Co.,  144  N.  Y.  200.  39  N.  E.  79,  43  Am.  St. 
Rep.  752  (1894),  hay  in  freighthouse  to  be  loaded  into  cars  bv  shipper ;  Mel- 
oche  V.  Chicago,  etc.,  R.  Co.,  116  Mich.  69,  74  N.  W.  301  (1898),  shipper  noti- 
fied of  lack  of  cars;  No.  Ger.  Lloyd  S.  S.  Co.  v.  Bullen,  111  111.  App.  42(> 
(1903),  baggage  delivered  five  days  before  vessel's  sailing  date. 

In  the  following  cases  liability  was  held  to  be  that  of  warehouseman  only: 
Watts  V.  Boston,  etc.,  R.  Co.,  106  Mass.  466  (1871),  part  of  a  shipment  deliv- 
ered in  successive  wagon  loads  detained  to  await  the  arrival  of  the  rest ; 
Basnight  v.  Railroad  Co.,  Ill  N.  0.  592,  16  S.  E.  323  (1892),  car  loaded  by 
shipper  with  lumber  for  Philadelphia  moved  by  carrier  to  an  adjacent  track, 
but  without  notice  of  readiness  or  of  consignee's  name;  Dixon  v.  Cent  of 
Ga.  R.  Co.,  110  Ga.  173.  35  S.  E.  369  (1900),  goods  to  be  weighed  by  carrier 
to  ascertain  freight,  which  was  to  be  prepaid;  Chicago,  B.  &  Q.  R.  Co.  v. 
Powers,  73  Neb.  816,  103  N.  W.  678  (19,05),  cattle  in  railroad's  pens,  from 
which  they  were  to  be  taken  by  shipper  for  food  and  water  before  putting 
them  on  cars. 

7  By  Pub.  St.  c.  112,  §  212,  a  railroad  company,  which  by  its  negligence 
"causes  the  death  of  a  passenger,"  is  liable  to  his  personal  representative  in 
an  action  of  tort. 


490  EXCEl'TIOXAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

train,  apparently  with  a  view  to  take  another  train,  which  was  about  to 
start  for  Boston,  on  the  track  beyond.  It  is  contended  in  behalf  of 
the  plaintitlf  that,  inasmuch  as  he  had  previously  obtained  a  ticket,  and 
was  on  the  defendant's  premises,  in  a  place  designed  for  the  use  of 
passengers,  outside  of  the  station,  and  was  about  to  take  a  train,  he 
had  become  a  passenger. 

One  becomes  a  passenger  on  a  railroad  when  he  puts  himself  into 
the  care  of  the  railroad  company,  to  be  transported  under  a  contract, 
and  is  received  and  accepted  as  a  passenger  by  the  company.  There 
is  hardly  ever  any  formal  act  of  delivery  of  one's  person  into  the  care 
of  the  carrier,  or  of  acceptance  by  the  carrier  of  one  who  presents  him- 
self for  transportation,  and  so  the  existence  of  the  relation  of  passen- 
ger and  carrier  is  commonly  to  be  implied  from  circumstances.  These 
circumstances  must  be  such  as  to  warrant  an  implication  that  the  one 
has  offered  himself  to  be  carried  on  a  trip  about  to  be  made,  and  that 
the  other  has  accepted  his  offer,  and  has  received  him  to  be  properly 
cared  for  until  the  trip  is  begun,  and  then  to  be  carried  over  the  rail- 
road. A  railroad  company  holds  itself  out  as  ready  to  receive  as  pas- 
sengers all  persons  who  present  themselves  in  a  proper  condition,  and 
in  a  proper  manner,  at  a  proper  place,  to  be  carried.  It  invites  every- 
body to  come  who  is  willing  to  be  governed  by  its  rules  and  regula- 
tions. 

In  a  case  like  this  the  question  is  whether  the  person  has  presented 
himself,  in  readiness  to  be  carried,  under  such  circumstances,  in  refer- 
ence to  time,  place,  manner,  and  condition,  that  the  railroad  company 
must  be  deemed  to  have  accepted  him  as  a  passenger.  Was  his  conduct 
such  as  to  bring  him  within  the  invitation  of  the  railroad  company? 
In  Dodge  v.  Steamship  Co.  [post,  p.  517]  it  was  said  that  "when  one 
has  made  a  contract  for  passage  upon  a  vehicle  of  a  common  carrier, 
and  has  presented  himself,  at  a  proper  place,  to  be  transported,  his  right 
to  care  and  protection  begins."  In  this  statement  it  was  assumed  that 
he  would  be  in  a  proper  condition,  and  present  himself  in  a  proper  man- 
ner. If  his  condition  should  render  him  unfit  to  be  in  the  presence  of 
passengers  on  the  train,  or  if  he  should  present  himself  while  doing 
something  which  would  expose  himself  or  others  to  great  danger  from 
the  cars  or  engines  of  the  carrier,  he  would  not  be  within  the  invita- 
tion of  the  railroad  company,  and  it  would  not  be  expected  to  accept 
him  as  a  passenger. 

In  the  present  case,  after  the  arrival  of  the  plaintiff's  intestate  on 
the  defendant's  premises,  there  was  no  time  when  he  presented  him- 
self in  a  proper  manner  to  be  carried.  He  was  all  the  time  running 
rapidly,  without  precautions  for  his  safety,  towards  a  point  directly 
in  front  of  an  incoming  train.  He  did  not  put  himself  in  readiness  to 
be  taken  as  a  passenger,  and  present  himself  in  a  proper  way.  If  we 
treat  his  approach  as  a  request  for  passage,  and  if  we  conceive  of  the 
railroad  company  as  being  present,  and  speaking  by  a  representative 
who  saw  him,  there  was  no  instant  when  the  answer  to  his  request 


Ch.  5)  DURATION    OF   LIABILITY.  491 

would  not  have  been :  "We  will  not  accept  you  as  a  passenger  while 
you  are  exposing  yourself  to  such  peril.  We  do  not  invite  persons  to 
become  passengers  while  they  are  rushing  into  danger  in  such  a  way." 
The  law  will  not  imply  a  contract  by  a  railroad  company  to  assume 
responsibilities  for  one  as  a  passenger  from  such  facts  as  appear  in 
this  case.  Dodge  v.  Steamship  Co.,  ubi  supra ;  Merrill  v.  Railroad 
Co.,  139  Mass.  238,  1  N.  E.  548,  53  Am.  Rep.  705 ;  Com.  v.  Boston 
&  M.  R.  Co.,  129  Mass.  500,  37  Am.  Rep.  382;  Warren  v.  Railroad 
Co.,  8  Allen,  227,  85  Am.  Dec.  700 ;  Baltimore  Traction  Co.  v.  State, 
78  Md.  409,  28  Atl.  397. 
Exceptions  overruled.^ 


LEWIS  v.  HOUSTON  ELECTRIC  CO. 

(Court  of  Civil  Appeals  of  Texas,  1905.    39  Tex.  Civ.  App.  G25.  88  S.  W.  489.) 

Pleasants,  J.9  *  *  *  The  charge  complained  of  required  ap- 
pellant to  prove  that  his  injuries  were  caused  by  the  failure  of  appellee's 
employes  to  use  ordinary  care,  and  it  is  unnecessary  to  cite  authority 
to  sustain  the  proposition  that  a  carrier  owes  its  passengers  the  duty 
to  exercise  that  high  degree  of  care  to  prevent  injury  to  them  which 
a  very  careful,  prudent,  and  competent  person  would  exercise  under 
like  circumstances.  It  follows  that,  if  the  pleading  and  evidence  raise 
the  issue  of  whether  appellant  sustained  the  relation  of  passenger  to 
the  appellee  carrier  at  the  time  he  was  injured,  the  charge  contains 
an  affirmative  misstatement  of  the  law,  which  will  require  a  reversal 
of  the  judgment  of  the  trial  court. 

From  the  evidence  offered  by  the  appellant,  before  set  out,  the  jury 
were  authorized  to  find  that  he  left  his  home  with  the  intention  of 
taking  passage  on  appellee's  car  to  the  city  of  Houston,  and,  in  fur- 
therance of  this  intention,  he  took  a  position  near  appellee's  track  at  a 
place  where  it  was  accustomed  to  stop  its  cars  for  the  purpose  of  re- 
ceiving passengers ;  that  when  the  car,  on  its  way  to  the  city,  ap- 
proached the  appellant,  he  called  and  signaled  to  the  motorman  to 
stop ;  and  that  the  motorman  saw  his  signal,  or  heard  his  call,  and 
slowed  the  car  down,  and  the  appellant,  being  prepared  and  willing 
to  pay  his  fare,  and  believing  that  the  car  was  being  stopped  for  the 
purpose  of  taking  him  on  as  a  passenger,  attempted  to  board  it,  and, 
while  so  doing,  was  injured; 

The  pleading  supports  these  facts,  and,  if  they  are  true,  appellant 
was,  in  contemplation  of  law,  a  passenger  at  the  time  he  received  his 

8  In  Grosvenor  v.  N.  Y.  Cent.  R.  Co.,  39  X.  Y.  34  (18;]8).  plaintiff  broujilit  to 
defendant's  freight  station  a  vehicle  intended  for  shipment,  left  it  on  the 
station  platform,  and  notified  defendant's  servant  that  he  had  done  so.  The 
servant  did  not  see  the  vehicle.  It  was  so  placed  that  it  projected  beyond 
the  platform  and  Avas  damaged  by  a  passing  train.  The  court  held  in  an 
action  for  the  damage  that  the  plaintiff  should  have  been  nonsuited. 

9  Parts  of  the  opinion  are  omitted. 


492  EXCEPTIOXAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

injuries;  and  appellee  was  charged  with  the  duty  of  using  that  high 
degree  of  care  to  protect  him  from  injury  which  a  very  careful,  pru- 
dent, and  competent  person  would  have  used  under  like  circumstances. 
It  may  often  be  difficult  to  determine  just  when  the  relation  of  car- 
rier and  passenger  begins,  and  what  acts  of  the  parties  are  necessary 
to  create  such  relation,  but  there  are  certain  well-established  general 
principles  by  which  the  facts  of  each  particular  case  must  be  tested. 
The  relationship  may  arise  before  the  person  desiring  to  become  a 
passenger  actually  gets  on  the  conveyance  of  the  carrier,  and  it  may 
continue  after  he  leaves  the  conveyance,  but  it  can  only  be  created 
by  contract  between  the  parties,  expressed  or  implied. 

From  the  nature  of  the  business  conducted  by  street  car  companies,. 
no  express  contract  of  carriage  is  made  with  the  great  majority  of 
those  who  ride  on  their  cars,  and  the  essential  elements  of  the  con- 
tract— the  offer  and  its  acceptance — must  ordinarily  be  implied  from 
the  acts  of  the  parties.  When  a  person  desiring  to  become  a  passen- 
ger upon  a  street  car  stations  himself  at  a  place  where  the  cars  are 
accustomed  to  receive  passengers,  and  signals  or  calls  to  the  motor- 
man  of  an  approaching  car  to  stop  the  car,  and  such  signal  is  seen 
by  the  motorman,  and  the  car  halted,  an  acceptance  of  the  offer  to 
become  a  passenger  will  be  implied  from  the  act  of  the  motorman 
in  stopping  the  car,  and  such  person  will  be  regarded  as  a  passenger 
while  he  is  in  the  act  of  getting  upon  the  car.  If  in  such  case  the 
person  desiring  to  become  a  passenger  attempts  to  board  the  car  before 
it  comes  to  a  full  stop,  he  is  not  necessarily  guilty  of  contributory  neg- 
ligence; and,  if  the  speed  of  the  car  was  slackened  to  such  an  extent 
as  to  lead  him  to  believe  that  it  was  being  stopped  to  allow  him  to  get 
on,  and  a  person  of  ordinary  care  would  have  so  believed,  and  have 
attempted  to  get  upon  the  car,  he  should  be  regarded  as  a  passenger 
while  making  such  attempt.^ ^ 

It  is  immaterial  that  the  motorman  may  not  have  intended  to  stop 
the  car  for  the  purpose  of  allowing  the  passenger  to  get  on.  If  the 
latter  was  at  a  place  where  passengers  were  usually  received,  and 
gave  the  usual  signal,  which  was  seen  by  the  motorman,  and  he  there- 
upon slackened  the  speed  of  the  car  to  such  an  extent  as  to  lead  a 
person  of  ordinary  care  to  believe  that  he  was  thereby  invited  to  be- 
come a  passenger,  such  relationship  would  be  created ;  the  motorman 
not  giving  any  warning  that  the  car  was  not  being  stopped  for  the 
purpose  of  receiving  passengers.  Under  such  circumstances,  the  car- 
rier would  not  be  heard  to  say  it  had  not  given  an  implied  acceptance 
of  the  offer  to  become  a  passenger. 

It  is  a  universal  rule  of  law  that  one  cannot  disclaim  responsibility^ 
for   the   consequences   which  usually   and  naturally   result    from  his 

10  Ace.  No.  Chicago  St.  R.  Co.  v.  Williams,  140  111.  275,  29  N.  E.  672  (1892); 
Bait.  Trac.  Co.  v.  State,  78  Md.  409,  28  Atl,  .397  (1894);  O'Mara  v.  St.  Louis- 
Transit  Co.,  102  Mo.  App.  202,  7G  S.  W.  (580  (1903). 


Ch.  5)  DURATION    OF   LIABILITY.  493 

acts.  If  the  appellant,  in  the  exercise  of  ordinary  care  and  prudence, 
could  assume  that  the  act  of  the  motorman  in  checking  the  car  was 
in  response  to  his  signal,  and  for  the  purpose  of  allowing  him  to  board 
it,  in  acting  upon  such  assumption  and  attempting  to  get  on  the  car 
he  had  the  right  to  rely  upon  the  performance  by  the  motorman  of 
his  duty  to  use  that  high  degree  of  care  to  protect  him  from  injury 
wdiich  the  law  requires  a  carrier  to  exercise  for  the  safety  of  its  pas- 
sengers. In  other  words,  if  the  act  of  the  motorman,  who  had  seen 
appellant's  signal,  reasonably  induced  appellant  to  believe  that  he  was 
accepted  as  a  passenger,  while  so  believing  he  was  entitled  to  protection 
as  such.     *     *     * 

The  jury  might  have  concluded  that  the  act  of  the  motorman  in 
increasing  the  speed  of  the  car  before  appellant  had  succeeded  in  his 
attempt  to  board  it  was  not,  under  the  circumstances,  a  failure  to  use 
ordinary  care,  since  that  act  could  not  be  held  negligence  as  a  matter 
of  law.    *     *     * 

Reversed.^  ^ 

11  One  is  ordinarily  entitled  to  the  care  due  a  passenger  if  he  enters  a 
train  at  a  station,  though  without  the  carrier's  liuowledge.  Choate  v.  Mo. 
Pae.  Ry.  Co.,  67  Mo.  App.  105  (1896).  Or  while  entering  a  street  car  stand- 
ing at  a  corner.  Kane  v.  Cicero,  etc.,  Co.,  100  111.  App.  181  (1902).  But  com- 
pare Foster  v.  Seattle  Elec.  Co.,  35  Wash.  177,  76  Pac.  995  (1904).  But  not 
while  boarding  a  railroad  train  without  the  carrier's  knowledge  at  a  place 
not  a  station,  though  the  train  has  stopped  because  he  flagged  it.  Ga.  Pac, 
Ry,  V.  Robinson,  68  Miss.  643.  10  South.  60  (1891),  Nor  while  attempting  to 
board  a  moving  train  leaving  a  station.  Merrill  v.  Eastern  R..  139  Mass, 
238.  1  N.  E.  548,  52  Am.  Rep.  7.05  (1885).  In  the  latter  case.  Holmes,  J.,  said: 
*'We  may  admit  that  if  he  had  reached  a  place  of  safety,  and  seated  himself 
inside  the  car,  the  bailment  of  his  person  to  the  defendant  would  have  been 
accomplished,  and  that  he  would  not  have  been  prevented  from  asserting  such 
rights  because  of  his  improper  way  of  getting  upon  the  train.  But  we  think 
that  he  could  not  assert  them  until  he  had  passed  the  danger  which  met 
bim  at  the  threshold,  and  had  put  himself  in  the  proper  place  for  the  car- 
riage of  passengers." 

So  one  is  noi;  ordinarily  a  passenger  while  Ijoarding  a  moving  street  car 
without  the  carrier's  knowledge.  Schepers  v.  Union  Depot  Co.,  126  Mo.  665. 
29  S.  W.  712  (1895).  Or  while  boarding  a  car  which  is  coming  to  a  stop  for 
one,  if  there  is  no  indication  of  a  present  readiness  to  permit  passengers  to 
enter.  Schaefer  v.  St.  Louis  Co.,  128  Mo.  64.  30  S.  W.  331  (1895).  Or  while 
boarding  a  train  stopped  only  to  let  passengers  off,  though  he  supposes  it 
stopping  to  receive  passengers.  Jones  v.  B.  &  M.  R.  Co.,  163  Mass.  245,  39 
N,  E.  1019  (1895).  But  one  mav  be  a  passenger,  though  on  a  wrons  train  by 
mistake.  Lewis  v.  Del.  &  H.  Canal  Co.,  145  N.  Y.  508,  40  N.  E.  248  (1895). 
One.  however,  who  by  mistake  entered  a  car  bound  for  the  car  house  and 
not  intended  for  passengers  was  held  not  to  be  a  passenger.  Robertson  v, 
Bost.  etc.,  Co..  190  Mass.  108,  76  N.  E.  513,  3  L.  R.  A,  (N.  S,)  588,  112  Am.  St. 
Rep.  314  (1906), 

In  Chicago  &  E.  I.  R.  Co.  v.  Jennings.  190  111.  478,  60  X.  E.  818,  .54  L.  R. 
A.  827  (1901),  plaintiff's  intestate  was  struck  and  killed  by  defendant's  train, 
as  he  was  crossing  its  track  on  the  sidewalk  of  a  public  street  on  his  way 
to  take  his  usual  morning  train,  then  standing  at  the  station  a  short  distance 
away.  He  had  a  ticket  in  his  pocket.  A  platform  for  the  use  of  passengers 
"began  at  the  sidewalk  just  on  the  other  side  of  the  track,  and  ran  alongside 
the  track  in  front  of  the  station.  The  declaration  was  founded  upon  the 
carrier's  duty  to  its  passenger.  It  was  held  that  these  facts  did  not  show 
plaintiff  to  be  a  passenger,  and  that,  if  not  such,  there  could  be  no  recovery, 
Cartwright,  J,,  said:     "In  June  v.  Railroad  Co.,  153  Mass.  79,  26  N.  E.  238, 


494  EXCEPTIONAL   LIABILITY   OP   COMMON  CARRIER.  (Part  4 


DUCHEMIN  V.  BOSTON  ELEVATED  R.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1904.    180  ]Mass.  353,  71  N.  E.  780, 
66  L.  R.  A.  980,  104  Am.  St.  Rep.  580.) 

Barker,  J.^^  The  action  is  for  a  personal  injury  occasioned  by  the 
fall  of  a  trolley  pole  and  car  sign.  The  case  stated  in  the  declaration 
is  that,  as  the  car  approached  the  plaintiff,  he  went  toward  it  for  the 
purpose  of  entering  it,  having  given  the  motorman  in  control  notice 
of  his  intention  so  to  become  a  passenger,  and  that  as  he  was  about  to 
get  on  the  car  the  trolley  pole  fell,  striking  a  sign  upon  the  car.  and 
the  pole  and  sign  struck  the  plaintiff;  he  being  in  the  exercise  of.  due 
care,  and  the  defendant  negligent.     *     *     * 

After  a  verdict  for  the  plaintiff,  the  case  is  before  us  upon  the  de- 
fendant's exception  to  the  refusal  of  the  judge  to  give  the  rulings  re- 
quested, and  upon  an  exception  to  the  portions  of  the  charge  which 
stated  that  a  person  may  have  the  rights  of  a  passenger  as  he  ap- 
proaches a  street  car,  and  the  degree  of  care  owed  to  a  person  under 
those  circumstances.     *     *     * 

This  leaves  as  the  turning  point  of  the  case  the  question  whether  a 
foot  traveler  on  the  highway,  who  is  approaching  a  street  car  stopped 
to  receive  him  as  a  passenger,  and  before  he  actually  has  reached  the 
car,  is  entitled  to  the  rights  of  a  passenger  in  respect  of  that  extraor- 

a  person  was  walking:  towards  the  station  on  a  plank  walk,  on  the  premises 
of  the  railroad  company,  intending  to  take  a  train,  and  was  struck  by  an- 
other train.  The  court  held  that  he  was  not  a  passenger,  and  said  that 
argument  was  not  necessary  to  show  that  a  man  walking  towards  a  railroad 
station,  Avith  the  intention  of  buying  a  ticket  and  taking  a  train  after  he  got 
there,  was  not  a  passenger,  even  if  he  might  be  in  the  same  place  if  he  had 
begun  his  journey.  If  the  relation  has  never  been  entered  into,  the  (piestiou 
is  not  the  same  as  where  a  passenger  may  rightfully  be  without  ceasing  to 
be  a  passenger  after  the  relation  has  been  assumed.  *  *  *  Since  a  rail- 
road company  owes  the  duty  of  protection  to  its  passengers,  it  seems  jilain 
that  the  circumstances  must  be  such  that  the  company  will  understand  that 
such  a  person  is  a  passenger  in  its  care  and  entitled  to  its  protection.  The 
company  certainly  has  a  right  to  know  that  the  relation  and  duty  exists,  and 
the  passenger  nuist  be  at  some  place  provided  by  the  company  for  passengers. 
or  some  place  occupied  or  used  by  them  in  waiting  for  or  getting  on  or  off 
trains.  Whenever  a  person  goes  into  such  a  place  with  the  intention  of  tak- 
ing passage,  he  may  fairly  expect  that  the  company  will  understand  that  he 
is  a  passenger  and  protect  him.  If  he  could  be  a  passenger  before  reaching 
such  a  place,  there  would  be  no  limit  or  place  where  it  could  be  said  that 
he  became  a  passenger.  The  intention  of  taking  a  train  would  only  prove  a 
purpose  to  enter  into  the  contract  relation,  but  would  not  create  it.  Any  per- 
son walking  towards  a  train  on  a  public  sidewalk  might  have  no  intention 
whatever  of  taking  the  train,  but  might  have  an  intention  to  keep  on  along 
the  street.  So  long  as  a  person  merely  intends  to  be  carried,  but  has  not 
reached  any  place  provided  for  passengers  or  used  for  their  accommodation,' 
he  is  not  a  passenger." 

See,  further,  as  to  when  one  at  a  railroad  station  is  a  passenger.  Poucher 
V.  N.  Y.  C.  R.  Co.,  49  N.  T.  263.  10  Am.  Rep.  304  (1872)  ;  Chicago,  etc..  Co. 
V.  Chancellor.  60  111.  App.  525  (1895);  Andrews  v.  Yazoo  &  M.  V.  R.  Co.,  86 
Miss.  129,  38  South.  773  (1905);   21  Harvard  Law  Rev.  252-254. 

12  Parts  of  the  opinion  are  omitted. 


Ch.  5)  DURATION    OF  LIABILITY.  495 

dinary  degree  of  care  due  to  passengers  from  common  carriers,  at 
least  so  far  as  any  defect  in  that  car  is  concerned.  In  other  words, 
the  question  is  whether  the  jury  should  have  been  instructed  that 
the  defendant  owed  to  the  plaintiff  the  same  high  degree  of  care 
while  he  was  approaching  the  car,  and  had  not  yet  reached  it,  that 
it  would  owe  to  a  passenger.  It  is  apparent  that  a  person  in  such 
a  situation  is  not  in  fact  a  passenger.  He  has  not  entered  upon  the 
premises  of  the  carrier,  as  has  a  person  who  has  gone  upon  the 
grounds  of  a  steam  railroad  for  the  purpose  of  taking  a  train.  He  is 
upon  a  public  highway,  where  he  has  a  clear  right  to  be  independently 
of  his  intention  to  become  a  passenger.  He  has  as  yet  done  nothing 
which  enables  the  carrier  to  demand  of  him  a  fare,  or  in  any  way  to 
control  his  actions.  He  is  at  liberty  to  advance  or  recede.  He  may 
change  his  mind,  and  not  become  a  passenger.  Certainly  the  carrier 
owes  him  no  other  duty  to  keep  the  pavement  smooth,  or  the  street 
clear  of  obstructions  to  his  progress,  than  it  owes  to  all  other  travelers 
on  the  highway.  It  is  under  no  obligations  to  see  that  he  is  not  as- 
saulted, or  run  into  by  vehicles  or  travelers,  or  not  insulted  or  other- 
wise mistreated  by  other  persons  present.  Nor  do  we  think  that  as  to 
such  a  person,  who  has  not  yet  reached  the  car,  there  is  any  other 
duty,  as  to  the  car  itself,  than  that  which  the  carrier  owes  to  all  per- 
sons lawfully  upon  the  street. 

There  is  no  sound  distinction  as  to  the  diligence  due  from  the  car- 
rier between  the  case  of  a  person  who  has  just  dismounted  from  a 
street  car  and  that  of  one  who  is  about  to  take  the  car,  but  has  not 
yet  reached  it.  In  the  case  of  each  the  only  logical  test  to  determine 
the  degree  of  care  which  the  person  is  entitled  to  have  exercised  by 
the  street  railway  company  is  whether  the  person  actually  is  a  pas- 
senger, or  is  a  mere  traveler  on  the  highway.  We  think  that  a  pres- 
ent intention  of  becoming  a  passenger  as  soon  as  he  can  reach  the 
car  neither  makes  the  person  who  is  approaching  the  car  with  that 
intention  a  passenger,  nor  changes  as  to  him  the  degree  of  care  to  be 
exercised  in  respect  of  its  cars  as  vehicles  to  be  used  upon  a  public 
way  with  due  regard  to  the  use  of  the  same  way  by  others.  The  de- 
fendant incurs  no  responsibility  to  exercise  extraordinary  diligence  by 
making  an  express  contract,  but  only  by  its  exercise  of  the  calling  of  a 
common  carrier;  and  its  obligation  as  such  does  not  arise  until  the 
intending  passenger  is  within  its  control. 

We  are  unwilling  to  go  farther  than  the  doctrine  stated  in  Davey 
V.  Greenfield  Street  Railway  Co.,  177  Mass.  106,  58  N.  E.  172,  that, 
when  there  has  been  an  invitation  on  the  part  of  the  carrier  by  stop- 
ping for  the  reception  of  a  passenger,  any  person  actually  taking  hold 
of  the  car  and  beginning  to  enter  it  is  a  passenger.  See  Gordon  v. 
West  End  Street  Railway  Co.,  175  Mass.  181,  183,  55  N.  E.  990,  and 
cases  cited.  If  the  instructions  allowed  the  jury  to  find  for  the  plain- 
tiff only  in  case  the  car  had  reached  a  usual  stopping  place,  and  had 
stopped  to  receive  him,  there  was  error  in  ruling  that  under  those  cir- 


49G  EXCEPTIONAL    LIABILITY   OF   COMMON  CARRIER.  (Part  4 

•cumstances,  and  before  he  had  actually  reached  the  car,  he  had  a  right 
to  have  the  defendant  exercise  as  to  him  that  extraordinary  degree  of 
care  due  to  passengers.  So  long  as  he  remained  a  mere  traveler  on  the 
highway,  although  walking  upon  it  for  the  sole  purpose  of  taking  the 
car,  the  defendant  did  not  owe  him  any  other  duty  than  that  which  it 
owed  to  any  person  on  the  highway.  Whether  one  just  has  dis- 
mounted from  a  street  car,  or  just  is  about  to  board  one,  he  does  not 
have  the  rights  of  a  passenger. 
Exceptions  sustained.^^ 


SECTION  2.— WHEN  LIABILITY  ENDS 


ADAMS  EXPRESS  CO.  v.  DARNELL. 
<Supreme  Court  of  Judicature  of  Indiana,  1SG9.    31  Ind.  20,  90  Am.  Dec.  5S2.) 

Frazer,  J.^*  This  was  a  suit  against  the  appellant  as  an  express 
carrier,  by  the  appellee,  to  recover  the  value  of  United  States  bonds 
to  the  amount  of  $21,000,  intrusted  by  the  appellee  to  the  express 
company,  to  be  conveyed  from  Indianapolis  to  the  village  of  Waldron, 
consigned  to  the  appellee,  and  lost  by  the  negligence  of  the  appellant, 
and  not  delivered  to  the  plaintiff. 

There  was  an  answer  in  five  paragraphs,  only  two  of  which  need 
be  noticed : 

1.  General  denial. 

2.  That  the  defendant  kept  an  agent  and  office  at  Waldron,  and 
plaintiff  resided  there;  that  W.  was  a  small  village  to  which  valuable 
packages  were  seldom  sent,  the  express  business  of  the  defendant  at 
that  point  being  so  small  as  not  to  require  or  justify  the  defendant  in 
keeping  an  iron  safe,  and  none  was  therefore  kept  there  by  it,  of  all 
which  the  plaintiff  had  notice;  that  when  the  package  was  delivered 
by  the  plaintiff  to  the  defendant  at  Indianapolis  the  former  well  knew 
that  by  due  course  of  transmission  it  would  arrive  at  Waldron  at  noon 
on  the  11th  of  May,  18G6,  at  which  hour  it  did  safely  arrive  and  was 
ready  for  delivery  to  the  plaintiff ;  that  the  plaintiff'  was  absent  from 
home  during  all  that  day,  and  had  no  agent  there,  so  that  delivery  to 
liim  in  person  could  not  be  made  on  that  day  during  business  hours, 
though  the  defendant  was  then  ready  to  make  such  delivery;   that  the 

13  Ace.  Donovan  v,  Hartford  St.  Ry.  Co.,  65  Conn.  201,  32  Atl.  35,0.  29  L. 
R.  A.  297  (1894).  And  see  Foster  v.  Seattle  Elec.  Co.,  35  Wash.  177,  76  Pac. 
995  (1904).  Contra:  Smitli  v.  St.  Paul,  etc.,  Co.,  32  Minn.  1,  18  N.  W.  827, 
50  Am.  Rep.  550  (1884).  And  see  Keator  v.  Scranton  Trac.  Co.,  191  Pa.  102, 
113,  43  Atl.  86,  44  L.  R.  A.  546,  71  Am.  St.  Rep.  758  (1899),  and  a  criticism 
of  the  principal  case  in  21  Harvard  Law  Rev.  2.56-258. 

14  Part  of  the  opinion  is  omitted. 


Ch.  5)  DURATION    OF   LIABILITY.  497 

defendant  afterwards,  on  that  day,  deposited  said  package  in  a  good 
and  secure  iron  safe  of  one  Haywood,  reputed  to  be  a  respectable  and 
responsible  merchant  of  the  village,  and  caused  the  safe  to  be  securely 
locked,  said  safe  being  the  most  secure  place  of  deposit  in  the  village; 
that  on  that  night  the  safe  was  robbed  by  burglars  and  the  bonds 
stolen,  wherefore  it  became  impossible  to  deliver. 

It  is  assigned  for  error,  that  a  demurrer  was  sustained  to  the  second 
paragraph  of  the  answer.     *     *     * 

Personal  delivery  of  the  package  was  one  of  the  duties  of  the  car- 
rier as  such.  The  answer  shows  that  this  was  rendered  impossible 
by  the  plaintiff,  in  consequence  of  his  absence,  with  a  knowledge  by 
him  of  the  arrival  of  the  package.  Could  he  thus  knowingly  and  on 
purpose  prolong  the  extraordinary  liability  of  the  defendant  as  insurer, 
by  putting  it  out  of  the  power  of  the  latter  to  terminate  that  liability? 
It  was  the  interest  of  the  carrier  to  terminate  its  liability  as  insurer  as 
soon  as  possible,  and  it  was  its  right  and  duty  to  do  so  within  a  rea- 
sonable time,  by  delivery.  Such  was  the  nature  of  the  contract.  This 
right  to  terminate  liability  as  insurer  it  was  not  in  Darnell's  power  to 
take  away,  by  design,  or  to  promote  his  convenience;  for  to  do  so 
would  be  to  secure  to  himself  an  additional  insurance  not  contracted 
for.  If  his  interests,  convenience,  or  pleasure  required  his  absence, 
the  consequences  of  such  absence  should  fall  upon  himself,  and  not 
upon  another.  Such  absence,  preventing  delivery,  would  not  dis- 
charge the  defendant  from  all  responsibility,  but  it  would  end  its  lia- 
bility as  carrier;  thenceforth  its  liability  would  be  that  of  a  bailee, 
not  liable  as  insurer,  but  for  such  reasonable  care  of  the  property  as 
prudence  would  require;  and  the  paragraph  of  the  answer  under 
consideration  certainly  shows  such  care. 

The  doctrine  that  the  carrier's  duty  to  deliver  and  the  consignee's 
duty  to  receive  are  reciprocal,  and  that  each  must  be  maintained,  is 
approved  by  the  plainest  considerations  of  justice,  and  is  necessary 
to  prevent  wrong  and  imposition.  We  are  not  aware  that  it  has  ever 
been  questioned.  It  has,  on  the  contrary,  been  recognized  by  many 
decisions,  but  in  none  that  we  are  advised  of  has  it  been  so  plainly 
declared  as  in  Roth  v.  Buffalo,  etc.,  R.  R.  Co.,  31  N.  Y.  548,  9  Am. 
Dec.  736.  See,  also,  Marshall  v.  American  Express  Co.,  7  Wis.  1,  73 
Am.  Dec.  381 ;  Richardson  v.  Goddard  [ante,  p.  139]. 

It  may  not  be  possible  always  to  fix  the  exact  time  when  the  car- 
rier's responsibility  as  insurer  ceases,  and  when  he  becomes  a  mere 
bailee  in  deposit  or  otherwise.  But  where,  as  is  alleged  here,  the  con- 
signee has  notice-  of  the  arrival,  and  the  carrier  is  ready  to  deliver,  it 
seems  to  accord  with  reason  as  well  as  authority  that  then  the  liability 
as  carrier  ends.  31  N.  Y.  518,  9  Am.  Dec.  736,  supra;  Young  v. 
Smith,  3  Dana  (Ky.)  91,  28  Am.  Dec.  57. 

It  is  urged,  however,  that  the  appellant  had,  upon  the  trial,  the 
full  benefit  of  all  the  facts  alleged  in  the  second  paragraph  of  the  an- 
Geeen  Care. — 32 


498  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

swer.  But  this  is  a  mistake.  Most  of  the  facts  alleged  were  in  evi- 
dence, it  is  true,  and  properly  so  under  other  issues ;  but  the  court 
instructed  the  jury,  that  "if  the  plaintiff,  to  whom  the  package  was 
consigned,  was  at  the  place  where  the  package  was  to  be  delivered,  the 
next  day  after  its  arrival,  and  ready  to  receive  the  same,  it  was  within 
a  reasonable  time."  This  instruction  would  effectually  deprive  the 
appellant  of  the  benefit  of  the  facts.  It  told  the  jury  very  plainly  that 
those  facts  did  not  relieve  the  carrier  of  responsibility  as  insurer.  If 
the  facts  as  pleaded  were  sufficient,  then  the  instruction  was  obviously 
wrong.     *     *     * 

Reversed  and  remanded.^'' 


WITBECK  v.  HOLLAND. 

(Court  of  Appeals  of  New  York,  1871.    45  N.  T.  13.  6  Am.  Rep.  2.3.) 

Appeal  from  a  judgment  for  plaintifif,  entered  upon  the  report  of  a 
referee  in  an  action  against  the  treasurer  of  the  x*\merican  Express 
Company,  a  joint-stock  association,  to  recover  for  the  loss  of  a  pack- 
age of  money  received  by  the  American  Express  Company  from  the 
Adams  Express  Company,  a  prior  carrier,  addressed  to  Martin  Wit- 
beck,  at  Schenectady,  N.  Y.  The  package  was  transported  to  Schenec- 
tady, and  came  to  the  hands  of  the  local  agent  of  the  American  Ex- 
press Company  on  December  14,  1864.  Witbeck  then  resided  at 
Schenectady,  and  continued  to  reside  there  until  January  17,  1865. 

The  agent  of  the  American  Express  Company  did  not  know  Martin 
Witbeck,  and,  when  the  package  arrived,  looked  at  the  directory  and 
did  not  find  his  name  in  it.  The  next  day  the  agent  filled  up  a  notice 
and  addressed  it  to  Martin  Whitbeck,  Schenectady,  and  deposited  it 
in  the  post  office.  Between  one  and  three  days  thereafter,  the  agent 
inquired  of  two  men,  conductors  upon  the  X.  Y.  Central  Railroad, 
running  from  Schenectady  to  Troy,  and  also  incjuired  of  John  Brandt, 
the  city  treasurer  of  Schenectady,  whether  they  knew  Martin  Whit- 
beck, and  they  replied  they  did  not. 

The  agent  made  no  further  effort  to  find  the  consignee,  and  the 
package  was  deposited  in  the  company's  iron  safe  in  its  office  till 
January  17,  1865,  when  the  office  was  burglariously  opened  in  the 
night,  the  safe  blown  open,  the  package  abstracted  and  stolen,  and 
has  never  been  recovered. 

The  notice  put  in  the  post  office  was  not  received  by  IMartin  Wit- 
beck, though  inquiries  were  made  several  times  at  the  post  office  while 

15  Compare  Baldwin  v.  Am.  Ex.  Co.,  23  111.  197,  74  Am.  Dec.  100  (ISoO). 
In  that  case  Breese,  J.,  said:  "  *  *  *  jje  says  it  was  the  custom  at  the 
express  office  to  enter  the  packages  received  in  a  delivery  book,  which  is  also 
the  receipt  book,  and  by  which  book  they  deliver  to  consignees,  who  sign  a 
receipt  in  this  delivery  book.  Now  this  package  was  never  entered  on  this 
book,  and  of  course  was  not  ready  for  delivery." 


Ch.  5)  DrRATIOX    OF   LIABILITY.  499 

it  was  there,  by  his  wife  and  father,  for  letters  for  themselves  and 
for  him. 

Grover,  J.^^  *  *  *  When  the  defendant  received  the  package 
from  the  Adams  Company  at  New  York,  consigned  to  Martin  Wit- 
beck,  Schenectady,  it  became  liable  as  carrier  for  its  carriage  to 
Schenectady  and  its  delivery  to  Witbeck  there,  if  with  reasonable 
diligence  he  could  be  found.  The  performance  of  this  entire  service 
was  contracted  for  by  its  receipt  so  addressed,  and  had  the  defend- 
ant received  it  from  the  plaintiff  at  New  York  and  given  him  a  re- 
ceipt for  its  transportation,  the  obligation  to  make  personal  delivery 
at  Schenectady  would  have  been  incurred. 

The  only  remaining  question  arises  upon  the  exception  taken  to  the 
finding  by  the  referee,  as  a  fact,  that  the  defendant  did  not  make  due 
effort,  nor  use  due  diligence,  to  find  said  Martin  Witbeck,  the  con- 
signee of  said  package.  It  is  insisted  by  the  counsel  for  the  appel- 
lant that  the  question,  what  is  reasonable  diligence,  is  one  of  law. 
That  may  be  so,  when  there  is  no  conflict  in  the  evidence,  or  con- 
troversy as  to  the  facts  to  be  inferred  therefrom.  But  that  is  not 
this  case,  nor  will  most  cases  of  this  class  be  of  that  description.  In 
most,  if  not  all,  the  question  will  be  mixed,  both  of  fact  and  law. 
In  the  present  case  the  finding  of  the  referee  is  clearly  correct.  The 
diligence,  which  the  law  required  of  the  defendant,  was  such  as  a 
prudent  man  would  have  used  in  an  important  business  aft'air  of  hi.s 
own.  The  evidence  shows  that  the  defendant  was  so  inattentive  as 
to  mistake  the  surname  of  the  consignee.  Although  the  package 
was  addressed  to  Witbeck,  all  its  inquiries  were  made  for  Whitbeck. 
This  may  have  prevented  their  finding  him.  It  further  appeared  that 
its  inquiries  were  confined  to  a  few  persons  in  the  vicinity  of  its 
place  of  business,  and  that  by  these  it  obtained  information  of  other 
persons  of  a  like  surname,  one  of  whom  was  the  father  of  the  con- 
signee. Surely  inquiry  should  have  been  made  of  these  persons,  and 
had  it  been  so  made,  delivery  would  have  been  made  and  the  loss 
would  never  have  occurred. 

There  is  nothing  in  the  point  that  the  negligence  of  the  plaintiff 
in  not  giving  further  information  as  to  the  residence  of  the  consignee 
contributed  to  the  loss.  The  defendant  accepted  the  package,  ad- 
dressed as  it  was.  and  failed  in  the  performance  of  the  duty  imposed 
thereby.  For  such  failure  it  is  responsible,  irrespective  of  the  right 
of  the  plaintiff  to  give  additional  information.  I  have  examined  the 
various  exceptions  taken  by  the  appellant  to  the  rulings  of  the  ref- 
eree as  to  the  competency  of  evidence.  The  question  whether  the 
consignee  was  well  known  in  Schenectady  was  proper.  The  plaintiff 
had  the  right  to  prove  this  fact  if  he  could.     But  the  testimony  given 

16  The  statement  of  facts  has  been  partly  rewritten,  and  a  portion  of  the 
opinion  omitted. 


500  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

in  answer  was  not  material.  None  of  the  testimony  excepted  to  could 
have  prejudiced  the  defendant.  The  judgment  appealed  from  must 
be  affirmed.^ ^ 


NORWAY  PLAINS  CO.  v.  BOSTON  &  AI.  R.  R. 

(Supreme  Judicial  Court  of  Massachusetts,  1S54.     1  Gray,  2G3,  61  Am.  Dec. 

423.) 

Action  of  contract  upon  the  agreement  of  the  defendants  to  trans- 
port certain  goods  from  Rochester,  N.  H.,  to  Boston. 

Shaw,  C.  J.^*  ^c  *  *  'p}-,g  present  is  an  action  brought  to  re- 
cover the  value  of  two  parcels  of  merchandise,  forwarded  by  the 
plaintiffs  to  Boston,  in  the  cars  of  the  defendants.  These  goods  were 
described  in  two  receipts  of  the  defendants,  dated  at  Rochester,  N. 
H.,  the  one  October  31,  1850,  and  the  other  November  2,  1850. 

By  the  facts  agreed  it  appears  that  the  goods  specified  in  the  first 
receipt  were  delivered  at  Rochester,  and  received  into  the  cars,  and 
arrived  in  Boston  seasonably  on  Saturday,  the  2d  of  November,  and 
were  then  taken  from  the  cars,  and  placed  in  the  depot  or  warehouse 
of  the  defendants;  that  no  special  notice  of  their  arrival  was  given 
to  the  plaintiffs  or  their  agent ;  but  that  the  fact  was  known  to  Ames, 
a  truckman,  who  was  their  authorized  agent,  employed  to  receive  and 
remove  the  goods,  that  they  were  ready  for  delivery,  at  least  as  early 
as  Monday  morning,  the  4th  of  November,  and  that  he  might  then 
have  received  them. 

The  goods  specified  in  the  other  receipt  were  forwarded  to  Boston 
■on  INIonday,  the  4th  of  November;  the  cars  arrived  late;  Ames,  the 
truckman,  knew  from  inspection  of  the  waybill  that  the  goods  were 
on  the  train,  and  waited  for  them  some  time,  but  could  not  con- 
veniently receive  them  that  afternoon,  in  season  to  deliver  them  at 
the  places  to  which  they  were  directed,  and  for  that  reason  did  not 
take  them;  in  the  course  of  the  afternoon  they  were  taken  from  the 
cars  and  placed  on  the  platform  within  the  depot;  at  the  usual  time 
at  that  season  of  the  year,  the  doors  were  closed.  In  the  course  of 
the  night  the  depot  accidentally  took  fire  and  was  burnt  down,  and 
the  goods  were  destroyed.  The  fire  was  not  caused  by  lightning; 
nor  was  it  attributable  to  any  default,  negligence,  or  want  of  due 
care  on  the  part  of  the  railroad  corporation,  or  their  agents  or  serv- 
ants. 

17  Ace.  Am.  Ex.  Co.  v.  Hockett,  30  Ind.  250,  9.5  Am.  Dec.  691  (1868). 

In  Laporte  v.  Wells  Fargo  Etxpress,  23  App.  Div.  267,  48  X.  Y.  Supp.  292 
(1897),  the  consignee  was  unknown  to  the  carrier,  two  days  had  elapsed 
since  the  mailing  to  him  of  a  notice  addressed  to  him  at  the  town  to  which 
the  goods  were  sent,  and  he  lived  in  a  neighboring  town.  The  com't  ruled 
that  the  carrier's  exceptional  liability  was  at  an  end. 

18  Parts  of  the  statement  of  facts  and  of  the  opinion  have  been  omitted. 


Ch.  5)  DURATION    OF   LIABILITY.  501 

We  understand  the  merchandise  depot  to  be  a  warehouse,  suitably 
enclosed  and  secured  against  the  weather,  thieves,  and  other  like 
ordinary  dangers,  with  suitable  persons  to  attend  it,  with  doors  to 
be  closed  and  locked  during  the  night,  like  other  warehouses  used 
for  the  storage  of  merchandise;  that  it  is  furnished  with  tracks,  on 
which  the  loaded  cars  run  directly  into  the  depot  to  be  unloaded ; 
that  there  are  platforms  on  the  sides  of  the  track,  on  which  the  goods 
are  first  placed;  that  if  not  immediately  called  for  and  taken  by  the 
consignees,  they  are  separated  according  to  their  marks  and  direc- 
tions, and  placed  by  themselves  in  suitable  situations  within  the  depot, 
there  to  remain  a  reasonable  and  convenient  time,  without  additional 
charge,  until  called  for  by  parties  entitled  to  receive  them. 

The  question  is  whether,  under  these  circumstances,  the  defendants 
are  liable.  *  *  *  Being  liable  as  common  carriers,  the  rule  of  the 
common  law  attaches  to  them,  that  they  are  liable  for  losses  occurring 
from  any  accident  which  may  befall  the  goods,  during  the  transit,  ex- 
cept those  arising  from  the  act  of  God  or  a  public  enemy.  *  *  * 
If,  on  the  contrary,  the  transit  was  at  an  end,  if  the  defendants  had 
ceased  to  have  possession  of  the  goods  as  common  carriers,  and 
held  them  in  another  capacity,  as  warehousemen,  then  they  were  re- 
sponsible only  for  the  care  and  diligence  which  the  law  attaches  to 
that  relation;  and  this  does  not  extend  to  a  loss  by  accidental  fire, 
not  caused  by  the  default  or  negligence  of  themselves,  or  of  serv- 
ants, agents,  or  others,  for  whom  they  are 'responsible. 

The  question  then  is,  when  and  by  what  act  the  transit  of  the  goods 
terminated.  It  was  contended,  in  the  present  case,  that,  in  the  ab- 
sence of  express  proof  of  contract  or  usage  to  the  contrary,  the  car- 
rier of  goods  by  land  is  bound  to  deliver  them  to  the  consignee,  and 
that  his  obligation  as  carrier  does  not  cease  till  such  delivery. 

This  rule  applies,  and  may  very  properly  apply,  to  the  case  of 
goods  transported  by  wagons  and  other  vehicles,  traversing  the  com- 
mon highways  and  streets,  and  which  therefore  can  deliver  the  goods 
at  the  houses  of  the  respective  consignees.  But  it  cannot  apply  to 
railroads,  whose  line  of  movement  and  point  of  termination  are  lo- 
cally fixed.  The  nature  of  the  transportation,  though  on  land,  is  much 
more  like  that  by  sea,  in  this  respect,  that  from  the  very  nature  of 
the  case,  the  merchandise  can  only  be  transported  along  one  line,  and 
delivered  at  its  termination,  or  at  some  fixed  place  by  its  side,  at  some 
intermediate  point.  The  rule  in  regard  to  ships  is  very  exactly  stated 
in  the  opinion  of  Buller,  J.,  in  H3'de  v.  Trent  &  Mersey  Navigation, 
5  T.  R.  397.  "A  ship  trading  from  one  port  to  another  has  not  the 
means  of  carrying  the  goods  on  land ;  and,  according  to  the  estab- 
lished course  of  trade,  a  delivery  on  the  usual  wharf  is  such  a  de- 
livery as  will  discharge  the  carrier." 

Another  peculiarity  of  transportation  by  railroad  is  that  the  car 
cannot  leave  the  track,  or  line  of  rails,  on  which  it  moves ;  a  freight 
train  moves  with   rapidity,  and  makes   very   frequent   journeys,   and 


502  EXCEPTIONAL  LIABILITY   OF   COMMON  CARRIER.  (Part  4 

a  loaded  car,  whilst  it  stands  on  the  track,  necessarily  prevents  other 
trains  from  passing  or  coming  to  the  same  place;  of  course,  it  is  es- 
sential to  the  accommodation  and  convenience  of  all  persons  inter- 
ested, that  a  loaded  car,  on  its  arrival  at  its  destination,  should  be 
unloaded,  and  that  all  the  goods  carried  on  it,  to  whomsoever  they 
may  belong,  or  whatever  may  be  their  destination,  should  be  dis- 
charged as  soon  and  as  rapidly  as  it  can  be  done  with  safety.  The 
car  may  then  pass  on  to  give  place  to  others,  to  be  discharged  in  like 
manner. 

From  this  necessary  condition  of  the  business,  and  from  the  prac- 
tice of  these  transportation  companies  to  have  platforms  on  which  to 
place  goods  from  the  cars,  in  the  first  instance,  and  warehouse  ac- 
commodation by  which  they  may  be  securely  stored,  the  goods  of  each 
consignment  by  themselves,  in  accessible  places,  ready  to  be  delivered, 
the  court  are  of  opinion  that  the  duty  assumed  by  the  railroad  cor- 
poration is — and  this,  being  known  to  owners  of  goods  forwarded, 
must,  in  the  absence  of  proof  to  the  contrary,  be  presumed  to  be  as- 
sented to  by  them,  so  as  to  constitute  the  implied  contract  between 
them — that  they  will  carry  the  goods  safely  to  the  place  of  destina- 
tion, and  there  discharge  them  on  the  platform,  and  then  and  there 
deliver  them  to  the  consignee  or  party  entitled  to  receive  them,  if  he  is 
there  ready  to  take  them  forthwith;  or  if  the  consignee  is  not  there 
ready  to  take  them,  then  to  place  them  securely  and  keep  them  safely 
a  reasonable  time,  ready  to  be  delivered  when  called  for.  This,  it 
appears  to  us,  is  the  spirit  and  legal  effect  of  the  public  duty  of  the 
carriers,  and  of  the  contract  between  the  parties  when  not  altered  or 
modified  by  special  agreement,  the  effect  and  operation  of  which  need 
not  here  be  considered. 

This  we  consider  to  be  one  entire  contract  for  hire ;  and  although 
there  is  no  separate  charge  for  storage,  yet  the  freight  to  be  paid, 
fixed  by  the  company  as  a  compensation  for  the  whole  service,  is  paid 
as  well  for  the  temporary  storage  as  for  the  carriage.  This  renders 
both  the  services,  as  well  the  absolute  undertaking  for  the  carriage, 
as  the  contingent  undertaking  for  the  storage,  to  be  services  under- 
taken to  be  done  for  hire  and  reward.  From  this  view  of  the  duty 
and  implied  contract  of  the  carriers  by  railroad,  we  think  there  re- 
sult two  distinct  liabilities:  First,  that  of  common  carriers,  and  aft- 
erwards that  of  keepers  for  hire,  or  warehouse  keepers;  the  obliga- 
tions of  each  of  which  are  regulated  by  law. 

We  may  then  say,  in  the  case  of  goods  transported  by  railroad, 
either  that  it  is  not  the  duty  of  the  company  as  common  carriers,  to 
deliver  the  goods  to  the  consignee,  which  is  more  strictly  conformable 
to  the  truth  of  the  facts ;  or,  in  analogy  to  the  old  rule  that  delivery 
is  necessary,  it  may  be  said  that  delivery  by  themselves  as  common 
carriers,  to  themselves  as  keepers  for  hire,  conformably  to  the  agree- 
ment of  both  parties,  is  a  delivery  which  discharges  their  responsibil- 
ity as  common  carriers.    If  they  are  chargeable  after  the  goods  have 


Ch.  5)  DURATION    OP   LIABILITY.  503 

been  landed  and  stored,  the  liability  is  one  of  a  very  different  char- 
acter,— one  which  binds  them  only  to  stand  to  losses  occasioned  by 
their  fault  or  negligence.     *    *     * 

The  principle,  thus  adopted,  is  not  new ;  many  cases  might  be  cited  ; 
one  or  two  will  be  sufficient.  Where  a  consignee  of  goods,  sent  by  a 
common  carrier  to  London,  had  no  warehouse  of  his  own,  but  was 
accustomed  to  leave  the  goods  in  the  wagon  office,  or  warehouse  of 
the  common  carrier,  it  was  held,  that  the  transit  was  at  an  end,  when 
the  goods  were  received  and  placed  in  the  warehouse.  Row  v.  Pick- 
ford,  8  Taunt.  83.  Though  this  was  a  case  of  stoppage  in  transitu, 
it  decides  the  principle.  But  another  case  in  the  same  volume  is  more 
in  point.  In  re  Webb,  8  Taunt.  443.  Common  carriers  agreed  to 
carry  wool  from  London  to  Frome,  under  a  stipulation  that  when  the 
consignees  had  not  room  in  their  own  store  to  receive  it,  the  carriers, 
without  additional  charge,  would  retain  it  in  their  own  warehouse, 
until  the  consignor  was  ready  to  receive  it.  Wool  thus  carried,  and 
placed  in  the  carriers'  warehouse,  was  destroyed  by  an  accidental 
fire ;  it  was  held  that  the  carriers  were  not  liable.  The  court  say  that 
this  was  a  loss  which  would  fall  on  them,  as  carriers,  if  they  were 
acting  in  that  character,  but  would  not  fall  on  them  as  warehousemen. 

This  view  of  the  law,  applicable  to  railroad  companies,  as  com- 
mon carriers  of  merchandise,  affords  a  plain,  precise,  and  practical  rule 
of  duty,  of  easy  application,  well  adapted  to  the  security  of  all  persons 
interested;  it  determines  that  they  are  responsible  as  common  car- 
riers until  the  goods  are  removed  from  the  cars  and  placed  on  the 
platform;  that  if,  on  account  of  their  arrival  in  the  night,  or  at  any 
other  time,  when,  by  the  usage  and  course  of  business,  the  doors  of 
the  merchandise  depot  or  warehouse  are  closed,  or  for  any  other 
cause,  they  cannot  then  be  delivered,  or  if,  for  any  reason,  the  consignee 
is  not  there  ready  to  receive  them,  it  is  the  duty  of  the  company  to 
store  them  and  preserve  them  safely,  under  the  charge  of  competent 
and  careful  servants,  ready  to  be  delivered,  and  actually  deliver  them 
when  duly  called  for  by  parties  authorized  and  entitled  to  receive 
them;  and  for  the  performance  of  these  duties  after  the  goods  are 
delivered  from  the  cars,  the  company  are  liable,  as  warehousemen,  or 
keepers  of  goods  for  hire. 

It  was  argued  in  the  present  case,  that  the  railroad  company  are  re- 
sponsible as  common  carriers  of  goods,  until  they  have  given  notice 
to  consignees  of  the  arrival  of  goods.  The  court  are  strongly  in- 
clined to  the  opinion,  that  in  regard  to  the  transportation  of  goods  by 
railroad,  as  the  business  is  generally  conducted  in  this  country,  this 
rule  does  not  apply.  The  immediate  and  safe  storage  of  the  goods 
on  arrival,  in  warehouses  provided  by  the  railroad  company,  and 
without  additional  expense,  seems  to  be  a  substitute  better  adapted 
to  the  convenience  of  both  parties.  The  arrivals  of  goods,  at  the 
larger  places  to  which  goods  are  thus  sent,  are  so  numerous,  fre- 
quent, and  various  in  kind,  that  it  would  be  nearly  impossible  to  send 


504  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

special  notice  to  each  consignee  of  each  parcel  of  goods  or  single  ar- 
ticle forwarded  by  the  trains.  *  *  *  But  we  have  thought  it  un- 
necessary to  give  a  more  decisive  opinion  on  this  point,  for  the  rea- 
son, already  apparent,  that  in  these  receipts  no  consignee  was  named ; 
and  for  another,  equally  conclusive,  that  Ames,  the  plaintiffs'  author- 
ized agent,  had  actual  notice  of  the  arrival  of  both  parcels  of  goods. 

In  applying  these  rules  to  the  present  case  it  is  manifest  that  the 
defendants  are  not  liable  for  the  loss  of  the  goods.  Those  which 
were  forwarded  on  Saturday  arrived  in  the  course  of  that  day,  lay 
there  on  Sunday  and  Monday,  and  were  destroyed  in  the  night  be- 
tween Monday  and  Tuesday.  But  the  length  of  time  makes  no  dif- 
ference. The  goods  forwarded  on  Monday  were  unladen  from  the 
cars,  and  placed  in  the  depot,  before  the  fire.  Several  circumstances 
are  stated  in  the  case,  as  to  the  agent's  calling  for  them,  waiting,  and 
at  last  leaving  the  depot  before  they  were  ready.  But  we  consider 
them  all  immaterial.  The  argument  strongly  urged  was,  that  the 
responsibility  of  common  carriers  remained  until  the  agent  of  the 
consignee  had  an  opportunity  to  take  them  and  remove  them.  But  we 
think  the  rule  is  otherwise.  It  is  stated,  as  a  circumstance,  that  the 
train  arrived  that  day  at  a  later  hour  than  usual.  This  we  think  im- 
material ;  the  corporation  do  not  stipulate  that  the  goods  shall  ar- 
rive at  any  particular  time.  Further,  from  the  very  necessity  of  the 
case  and  the  exigencies  of  the  railroad,  the  corporation  must  often 
avail  themselves  of  the  night,  when  the  road  is  less  occupied,  for  pas- 
senger cars,  so  that  goods  may  arrive  and  be  unladen  at  an  unsuit- 
able hour  of  the  night  to  have  the  depot  open  for  the  delivery  of  the 
goods. 

We  think,  therefore,  that  it  would  be  alike  contrary  to  the  contract 
of  the  parties  and  the  nature  of  the  carriers'  duty,  to  hold  that  they 
shall  be  responsible  as  common  carriers,  until  the  owner  has  prac- 
tically an  opportunity  to  come  with  his  wagon  and  take  the  goods; 
and  it  would  greatly  mar  the  simplicity  and  efficacy  of  the  rule  that 
delivery  from  the  cars  into  the  depot  terminates  the  transit.  If,  there- 
fore, for  any  cause,  the  consignee  is  not  at  the  place  to  receive  his 
goods  from  the  car  as  unladen,  and  in  consequence  of  this  they  are 
placed  in  the  depot,  the  transit  ceases.  In  point  of  fact,  the  agent 
might  have  received  the  second  parcel  of  goods  in  the  course  of  the 
afternoon  on  Monday,  but  not  early  enough  to  be  carried  to  the  ware- 
houses at  which  he  was  to  deliver  them ;  that  is,  not  early  enough  to 
suit  his  convenience.  But,  for  the  reasons  stated,  we  have  thought 
this  circumstance  immaterial,  and  do  not  place  our  decision  for  the 
defendants,  in  regard  to  this  second  parcel,  on  that  ground. 

Judgment  for  the  defendants. 


Ch.  5)  DURATION    OF   LIABILITY.  505 

MOSES  V.  BOSTON  &  M.  R.  CO. 

(Supreme  Court  of  New  Hampshire,  I80G.     32  N.  H.  523,  64  Am.  Dec.  381.) 

Case  for  the  value  of  ten  bags  of  wool  delivered  by  plaintiff  to 
defendant  railroad  company  to  be  carried  to  Boston.  At  the  trial 
defendant  gave  evidence  tending  to  show  that  the  wool  arrived  at 
Boston  and  was  placed  on  the  platform  of  defendant's  freight  station, 
separated  from  other  goods  and  ready  for  the  consignee  to  take 
away,  and  that  it  was  there  burned  in  a  fire  which  destroyed  the  sta- 
tion. By  consent  of  parties  and  subject  to  the  opinion  of  this  court 
a  verdict  was  entered  for  plaintiff  upon  the  answers  of  the  jury  to 
specific  questions.     Defendant  moved  to  set  the  verdict  aside. 

Sawyer,  J.^**  *  *  *  j£  ^j^g  verdict  is  to  be  sustained,  it  is  clear 
that  it  must  be  upon  one  or  the  other  of  the  grounds :  First,  that  the 
jury,  having  found  the  fact  in  answer  to  the  second  question,  that 
the  wool  was  not  removed  from  the  cars  a  sufficient  time  before  the 
fire  to  enable  the  consignees  to  remove  it  with  reasonable  diligence 
on  their  part  and  on  the  part  of  the  plaintiff,  it  continued  down  to 
the  time  of  its  loss  in  the  hands  of  the  defendants  as  common  carriers, 
their  liability,  as  such  carriers,  being  held  in  law  not  to  have  termi- 
nated until  the  consignees  had  had  reasonable  opportunity  after  it 
was  taken  from  the  cars ;  or,  second,  that  the  jury,  having  found  in 
answer  to  the  third  question  the  other  fact,  that  the  wool  was  lost 
through  the  negligence  of  the  defendants,  they  are  liable  for  the  con- 
sequences of  that  negligence  in  the  loss  of  the  wool,  in  whatever  ca- 
pacity they  held  it,  whether  as  carriers,  as  depositaries,  or  as  ware- 
housemen.    *     *     * 

The  wool  in  this  case  was  received  and  conveyed  by  the  defend- 
ants in  their  ordinary  employment  as  common  carriers.  It  was  not 
of  a  value  disproportionate  to  its  bulk,  and  was  such  that  no  decep- 
tion could  have  been  practiced  upon  them  as  to  the  extent  of  the 
risk  they  incurred.  In  the  transportation  of  such  commodities  their 
responsibility  as  carriers  commences  with  the  receipt  of  the  goods, 
though  not  put  by  them  immediately  on  the  transit,  and  it  ceases  only 
when  they  have  reached  their  destination  and  their  control  over  them 
as  carriers  has  terminated.  That  control  must  continue  until  delivery, 
or  a  tender  or  offer  to  deliver,  or  some  other  act  which  the  law  can 
regard  as  equivalent  to  a  delivery.  The  delivery  of  goods  conveyed 
by  railroad  is  necessarily  confined  to  certain  points  on  the  line  of  the 
railroad  track.  Railroad  companies  cannot,  like  wagoners,  pass  from 
warehouse  to  warehouse,  and  there  discharge  their  freight  to  the  vari- 
ous consignees  upon  their  own  premises.  They  consequently  establish 
certain  points  as  places  of  delivery,  and  there  unlade  their  cars  of 
such  of  the  freight  as  may  most  conveniently  find  its  ultimate  destina- 

19  The  statement  of  facts  has  been  rewritten.  Parts  of  the  opinion  are 
omitted. 


50G  EXCKrTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

tion  from  those  respective  points.  But  while  it  is  in  the  process  of 
unloading,  and  afterwards,  while  awaiting  removal,  it  must  be  pro- 
tected from  the  weather  and  from  depredation.  Freight  is  brought 
over  the  road  at  all  hours,  by  night  as  well  as  by  day,  and  the  trains 
must  necessarily  be  more  or  less  irregular  in  the  hours  of  their  ar- 
rival. It  cannot  be  required  of  the  consignee  to  attend  at  the  precise 
moment  when  his  goods  arrive,  to  receive  and  take  care  of  them,  and 
the  company  cannot  discharge  themselves  from  responsibility  by  leav- 
ing them  in  an  exposed  condition  in  the  open  air. 

Until  the  goods  have  passed  out  of  their  custody  and  control  into 
the  hands  of  the  proper  person  to  receive  them,  they  have  a  duty  to 
perform  in  the  preservation  and  protection  of  the  property  even  after 
their  responsibility  as  common  carriers  is  at  an  end.  Smith  v.  Nashua, 
etc.,  R.  R.  Co.,  27  N.  H.  86,  59  Am.  Dec.  364.  ,It  thus  becomes  a 
matter  of  necessity  for  them  to  provide  depots,  or  warehouses,  for 
the  reception  of  freight  at  the  stations  established  for  its  delivery.  If 
the  owner  or  consignee,  or  otiier  person  authorized  to  receive  the 
goods,  is  present  at  the  time  of  the  arrival,  and  has  opportunity  to 
see  that  they  have  arrived,  and  to  take  them  away,  this  may  be  re- 
garded as  equivalent  to  a  delivery.  They  must  be  understood  after 
this  to  remain  in  the  charge  of  the  company,  for  his  convenience,  as 
depositaries  or  bailees  for  hire.  In  such  case,  the  grounds  upon  which 
the  common-law  liability  of  the  carrier  is  made  to  rest  have  so  far 
ceased  to  exist  that  there  is  no  longer  any  just  occasion  for  holding 
the  company  to  that  stringent  responsibility  in  reference  to  those 
goods.  They  are  no  longer  in  the  course  of  transportation,  beyond 
the  reach  of  the  owner,  and  under  the  exclusive  control  and  observa- 
tion of  the  carrier.  The  owner  has  again  got  sight  of  his  property, 
and  is  in  a  situation,  to  some  extent,  to  oversee  and  protect  it.  Nor 
is  he  any  longer  under  the  difficulties  and  embarrassments  in  attempt- 
ing to  make  proof  of  subsequent  fraud  or  negligence  as  when  it  was 
on  its  passage  beyond  the  reach  of  his  observation  and  under  the  pri- 
vate control  of  the  carrier.  The  facilities  and  temptations  to  fraud 
and  collusion  in  the  embezzlement  or  larceny  of  the  goods  are  also 
removed,  or  at  least  greatly  diminished. 

It  is  upon  these  considerations  that  the  strict  liability  of  the  car- 
rier is  founded.  *  *  *  The  inquiry  then  is :  At  what  moment  aft- 
er the  goods  conveyed  by  a  railroad  company  in  their  cars  have  reached 
the  point  on  the  line  of  the  railroad  where  they  are  to  be  delivered  may 
the  reasons  upon  which  the  common-law  liability  of  the  carrier  is 
founded  be  said  to  cease,  when  there  is  no  person  present  at  their  ar- 
rival authorized  to  receive  them,  and  ready  to  take  them  away? 

That  it  is  the  duty  of  the  consignee  to  come  for  them  is  clear,  but 
it  would  be  quite  as  impracticable  for  him  to  be  at  the  place  of  deliv- 
ery at  the  precise  moment  of  their  arrival,  or  of  their  being  unladen 
from  the  cars,  without  actual  notice  to  him  of  their  arrival,  as  it  would 
be  for  the  company  to  diverge   from  their  line  of  road  in  order  to 


Ch.  5)  DURATION    OF  LIABILITY.  507 

deliver  them  at  his  place  of  business,  or  to  send  notice  to  him  of  their 
arrival,  before  proceeding  to  unload  them.  The  arrival  may  be  in  the 
night,  or  after  the  expiration  of  business  hours  at  the  station,  or  at 
so  late  a  period  before  it  as  to  render  it  impossible  for  him  to  get 
them  away  within  the  hours  of  business.  If,  under  such  circum- 
stances, they  have  been  removed  from  the  cars  and  placed  in  the  ware- 
house, it  cannot  be  said  that  they  are  so  placed  and  kept  there  until 
the  gates  are  opened,  and  business  resumed  upon  the  following  day, 
for  any  purpose  having  reference  to  the  convenience  and  accommo- 
dation of  the  owner  or  consignee,  nor  can  the  proceeding,  upon  any 
sound  view,  be  considered  as  equivalent  to  a  delivery.  The  same  per- 
sons— the  servants  of  the  company — continue  in  the  exclusive  pos- 
session and  control  of  the  goods  as  when  they  were  on  their  transit, 
and  they  are  equally  shut  up  from  the  observation  and  oversight  of 
all  others.  The  consignee  has  had  no  opportunity  to  know  that  they 
have  arrived,  and  in  what  condition,  and  is  in  no  better  situation  to 
disprove  the  fact,  or  to  question  any  account  the  servants  of  the  com- 
pany having  them  in  charge  may  choose  to  give  of  what  may  happen 
to  them  after  they  are  so  removed  from  the  cars,  or  what  has  hap- 
pened prior  thereto,  than  before.  If  purloined,  destroyed,  or  dam- 
aged by  their  fraud  or  neglect  subsequently  to  their  removal,  and 
before  he  can  have  had  the  opportunity  to  come  for  them,  he  is  left 
to  precisely  the  same  proof  as  if  the  larceny  or  injury  had  occurred 
while  they  were  actually  in  transitu — the  declarations  of  the  servants 
of  the  company,  they  having,  it  may  well  be  supposed,  feelings  and 
interests  adverse  to  him,  and  knowing  that  he  has  no  evidence  at 
command  from  other  sources  to  impeach  their  statement. 

It  is  obvious,  too,  that  the  opportunities  and  facilities  for  embezzling 
the  goods,  and  for  other  fraudulent  or  collusive  practices,  must  con- 
tinue to  be  equally  tempting  after  their  removal,  under  such  circum- 
stances, as  before.  The  risk  of  detection,  in  some  respects,  may  be 
made  even  less  than  before,  by  the  greater  facilities  which  the  serv- 
ant of  the  company  in  charge  of  the  warehouse  has  of  manufacturing 
evidence  of  a  burglary,  or  creating  proof  of  the  destruction  of  the 
goods  by  fire,  set  by  himself  for  the  purpose  of  concealing  his  agency 
in  their  larceny.  For  all  purposes  which  have  reference  to  the  dif- 
ficulties and  embarrassments  in  the  way  of  the  owner  in  attempting 
to  prove  loss  or  damage  by  the  fault  or  neglect  of  the  company,  to 
his  inability  to  give  to  them  any  oversight  or  protection,  and  to  his 
security  against  fraud  and  collusian  until  he  can  have  reasonable  op- 
portunity to  see  by  his  own  observation,  or  that  of  others  than  the 
servants  of  the  company,  that  they  have  arrived,  and  to  send  for  and 
take  them  away,  he  stands  in  the  same  relation  to  them  as  when  they 
were  actually  in  the  course  of  transportation.  The  same  broad  prin- 
ciples of  public  policy  and  convenience  upon  which  the  common-law 
liability  of  the  carrier  is  made  to  rest  have  equal  application  after  the 
goods  are  removed  into  the  warehouse  as  before,  until  the  owner  or 


508  EXCEPTIOXAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

consignee  can  have  that  opportunity ;  and  the  same  necessity  exists 
for  encouraging  the  fidehty  and  stimulating  the  care  and  dihgence  of 
those  who  thus  continue  to  retain  them  in  charge,  by  holding  that 
they  shall  continue  subject  to  the  risk. 

It  is  no  satisfactory  answer  to  this  view  to  say  that  the  company,, 
having  provided  a  warehouse  in  which  to  store  the  goods  for  the 
accommodation  of  the  owner,  after  the  transit  has  terminated,  may 
be  regarded,  by  their  act  of  depositing  them  in  the  warehouse,  as 
having  delivered  them  from  themselves  as  carriers  to  themselves  as 
warehousemen.  The  question  still  is :  When,  having  a  proper  regard 
to  the  principles  which  lie  at  the  basis  of  their  carrier  liability,  and  to 
the  protection  and  security  of  the  owner,  can  this  transmutation  of 
the  character  in  which  they  hold  the  goods  be  said  to  take  place,  and 
this  constructive  delivery  to  be  made?  If  this  is  held  to  be  at  any 
Doint  of  time  before  there  can  be  opportunity  to  take  them  from 
the  hands  of  the  company,  then  may  the  owner  be  compelled  to  leave 
them  in  their  possession,  under  the  limited  liability  of  depositaries, 
or  bailees  for  hire,  contrary  to  his  intention,  and  without  any  act  or 
neglect  on  his  part  which  may  be  considered  as  indicative  of  his  con- 
sent thereto.  It  may  have  been  his  intention  to  take  them  from  their 
possession  at  the  earliest  practicable  moment,  for  the  reason  that  he 
may  not  be  disposed  to  intrust  them  to  their  fidelity  and  care  without 
the  stimulus  to  the  utmost  diligence  and  good  faith  afforded  by  the 
strict  liability  of  carriers.  If  he  neglects  to  take  them  away  upon 
the  first  opportunity  that  he  has  to  do  it,  he  may  be  said  thereby  to 
have  consented  that  they  shall  remain  under  the  more  limited  respon- 
sibility. But  upon  no  just  ground  can  this  consent  be  presumed  when 
his  only  alternative  is  to  be  at  the  station  where  they  are  to  be  deliv- 
ered at  the  arrival  of  the  train,  at  whatever  hour  that  may  happen  to 
be,  whether  in  the  night  or  the  day,  in  or  out  of  business  hours,  and 
regardless  of  all  the  contingencies  upon  which  the  regularity  of  its 
arrival  may  depend. 

It  is  to  be  supposed  that  the  consignee  has  been  advised  by  the  con- 
signor of  the  fact  that  the  goods  have  been  forwarded,  and  that  he 
has  taken,  or  is  prepared  to  take,  proper  measures  to  look  for  them 
upon  their  arrival,  and  to  remove  them  as  soon  as  he  can  have  rea- 
sonable opportunity  to  do  so.  It  must  be  supposed,  too,  that  he  is  in- 
formed of  the  usual  course  of  business  on  the  part  of  the  company, 
and  of  their  agents,  in  the  hours  established  for  the  arrival  of  the 
trains,  and  in  unlading  the  cars,  and  delivering  out  goods  of  that  de- 
scription, and  that  he  will  exercise  reasonable  diligence  in  reference 
to  all  these  particulars  to  be  at  the  place  of  delivery  as  soon  as  may 
be  practicable  after  their  arrival,  and  take  them  into  his  possession. 
The  extent  of  the  reasonable  opportunity  to  be  afforded  him  for  that 
purpose  is  not,  however,  to  be  measured  by  any  peculiar  circumstances 
in  his  own  condition  and  situation,  rendering  it  necessary  for  his  own 
convenience  and  accommodation  that  he  should  have  longer  time  or 


Ch.  5)  DURATION    OF   LIABILITY.  509 

better  opportunity  than  if  he  resided  in  the  vicinity  of  the  warehouse, 
and  was  prepared  with  the  means  and  facihties  for  taking  the  goods 
away.  If  his  particular  circumstances  require  a  more  extended  op- 
portunity, the  goods  must  be  considered  after  such  reasonable  time 
as  but  for  those  peculiar  circumstances  would  be  deemed  sufficient  to 
be  kept  by  the  company  for  his  convenience,  and  under  the  respon- 
sibility of  depositaries  or  bailees  for  hire  only.-*^ 

In  the  case  now  under  consideration  there  was  conflicting  evidence 
as  to  the  time  when  the  train  by  which  the  wool  was  carried  arrived 
at  the  depot  in  Boston.  *  *  *  That  the  verdict,  in  answer  to  the 
second  question  submitted  to  the  jury,  was  therefore  warranted  by  the 
evidence  is  quite  clear;  and  as  there  are  no  legal  exceptions  to  the 
proceedings  upon  the  trial,  so  far  as  they  relate  to  this  point,  the 
answer  of  the  jury  to  that  question  estabiisnes  the  fact  that  the  con- 
signees had  no  reasonable  opportunity,  after  the  wool  was  taken  from 
the  cars,  to  come  and  inspect  it  so  far  as  to  see  whether  from  its  out- 
ward appearance  it  corresponded  with  the  letter  of  advice  trom  their 
consignor  and  to  remove  it  before  it  was  destroyed.  This  fact  being 
established,  upon  the  views  of  the  law  entertained  by  the  court  the 
transit  had  not  terminated,  and  the  defendants  continued  liable  for 
the  wool  as  carriers  down  to  and  at  the  time  of  the  loss ;  and  the  gen- 
eral verdict  entered  for  the  plaintiff  may  well  be  sustained  upon  the 
original  and  the  second  and  fourth  amended  counts. 

We  are  aware  that  this  view  of  the  liability  of  railroad  companies 
as  carriers  conflicts  with  the  opinion  of  the  supreme  court  of  Mas- 
sachusetts, as  pronounced  by  the  learned  chief  justice  of  that  court 
in  the  recent  case  of  Norway  Plains  Co.  v.  these  defendants  [ante, 
p.  500].  In  that  case  it  was  held  that  the  liabihty  as  carriers  ceases 
when  the  goods  are  removed  from  the  cars  and  placed  upon  the 
platform  of  the  depot  ready  for  delivery,  whether  it  be  done  in  the 
day  time  or  in  the  night,  in  or  out  of  the  usual  business  hours,  and 
consequently  irrespective  of  the  question  whc.her  the  consignee  has 
or  not  an  opportunity  to  remove  them.  The  ground  upon  which 
the  decision  is  based  would  seem  to  be  the  propriety  of  establishing 
a  rule  of  duty  for  this  class  of  carriers  of  a  plain,  precise,  and  prac- 
tical character,  and  of  easy  application,  rather  than  of  adhering  to 
the  rigorous  principles  of  the  common  law.  That  the  rule  adopted 
in  that  case  is  of  such  character  is  not  to  be  doubted ;  but  with  all  our 
respect  for  the  eminent  judge  by  whom  the  opinion  was  delivered, 
and   for  the  learned  court  whose  judgment  he  pronounced,  we  can- 

20  "What  is  a  reasonable  time?  This  is  not  a  time  varj'ing  with  the  dis- 
tance, convenience,  or  necessities  of  the  consignee ;  bnt  it  is  such  time  as  will 
enable  one  living  in  the  vicinity  of  the  place  of  delivery,  in  the  ordinary 
course  of  business,  and  in  the  usual  hours  of  business,  to  inspect  and  remove 
the  goods."     Brewer,  J.,  in  L.,  L.  &  G.  R.  Co.  v.  Maris,  16  Kan.  333  (1876). 

Whether  the  carrier's  liability  has  changed  to  that  of  an  ordinary  bailee 
is,  if  the  facts  are  undisputed,  for  the  court.  Tallassee  Falls  Mfg.  Co.  v. 
Western  R.  Co.,  128  Ala.  167,  29  South.  203  (1900). 


510  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

not  but  think  that  bv  it  the  sakitary  and  approved  principles  of  the 
common  law  are  sacrificed  to  considerations  of  convenience  and  ex- 
pediency, in  the  simplicity  and  precise  and  practical  character  of  the 
rule  which  it  establishes. 

It  is  unnecessary,  then,  to  consider  the  exceptions  taken  upon  the 
other  view  of  the  case,  as  an  action  against  the  defendants  for  neg- 
ligence in  their  care  of  the  wool  after  their  liability  as  carriers  had 
ceased. 

Judgment  upon  the  verdict.-^ 


WALTERS  V.  DETROIT  UNITED  RY.  CO. 

'Supreme  Court  of  Michigau,  1905.     139  Mich.  303,  102  N.  W.  74.").) 

Carpenter,  J.  On  the  7th  of  April,  1903,  plaintiffs  purchased  at 
the  village  of  Trenton,  Wayne  county,  certain  furniture  for  a  drug 
store.  They  placed  that  property  in  the  custody  of  defendant's  agent, 
at  Trenton,  with  instructions  to  ship  the  same  over  defendant's  rail- 
way— defendant  is  a  common  carrier  of  merchandise — to  them  at 
Pontiac,  Oakland  county,  on  Friday,  April  10th.  Had  the  goods 
been  sent  as  directed,  they  would,  according  to  the  usual  custom, 
known  to  plaintififs,  have  reached  Pontiac  on  Saturday,  the  11th,  or 
Monday,  the  13th,  of  April.  The  goods  were  in  fact  shipped  on  the 
8th  and  arrived  in  Pontiac  on  the  9th.  They  were  placed  in  defend- 
ant's warehouse,  and  were  there  destroyed  by  fire  Tuesday,  April  14th, 
before  notice  of  their  arrival  was  given  to  plaintififs.    Plaintiffs  brought 

21  See.  also,  McMillan  v.  Michigan,  etc.,  Co..  IG  Mich.  79.  102-1  OS.  127-130, 
93  Am.  Dec.  208  (1807);  L.,  I..  &  G.  R.  Co.  v.  Maris,  IG  Kan.  333  (lS7ti):  Kail- 
road  Co.  V.  Nevill,  60  Ark.  375,  30  S.  W.  425,  2S  L,  R.  A.  SO,  4u  Am.  St.  He]). 
208  (1895). 

"We  think  it  Is  the  true  rule  of  the  law  as  to  baggage  that  has  reached 
its  final  destination,  that  the  railroad  company  must,  upon  its  arrival,  have 
it  read.v  for  delivery  upon  the  platform  at  the  usnal  place  of  delivery,  until 
the  owner  can,  in  the  use  of  due  diligence,  call  for  and  receive  it ;  and  that 
the  owner  must  call  for  it  within  a  reasonable  time,  and  must  use  diligence 
in  calling  for  and  removing  it.  *  *  *  We  believe  it  to  be  the  usual  custom 
to  deliver  and  receive  baggage  not  only  during  what  is  called  the  business 
hours  of  the  day,  but  upon  the  arrival  of  trains  in  the  night,  and  at  almost 
any  hoiu*  of  the  night.  The  traveler  is  rarely  willing,  after  arriving  at  his 
destination,  to  leave  his  baggage  at  a  railroad  depot,  and  the  railroad  com- 
panies are  usually  desirous  to  dispatch  business,  and  be  relieved  from  their 
responsibilit.v.  Hence  immediate  deliver.v  is  the  rule  as  to  the  baggage:  and 
the  rule  that  has  been  applied  to  the  receipt  of  freight,  that  it  should  arrive 
during  the  usual  hours  of  business,  and  so  that  the  consignee  may  have  an 
opportunity  during  the  hours  of  business  to  see  and  receive  it,  does  not  apply 
to  baggage,  which  usually  accompanies  the  traveler,  and  is  required  by  him 
on  arrival."  Aldis,  J.,  in  Ouimit  v.  Henshaw,  35  Vt.  005,  84  Am.  Dec.  040 
(1863). 

See,  further,  as  to  the  cessation  of  strict  liability  for  baggage,  Hutchinson 
on  Carriers,  §§  707-711;    cases  collected  iu  30  L.  R.  A.  781-788. 


Ch.  5)  DURATION    OF   LIABILITY.  511 

suit  and  recovered  judgment  upon  the  ground  that  defendant's  liabiHty 
as  common  carrier  continued  at  the  time  the  goods  were  destroyed. 
Defendant  insists  that  a  verdict  should  have  been  directed  in  its  favor. 

There  was  no  evidence  of  defendant's  neghgence.  If,  at  the  time 
the  goods  were  destroyed  by  fire,  defendant  continued  to  hold  them 
under  its  responsibility  as  a  common  carrier  (that  is,  as  an  insurer 
against  all  injuries  except  acts  of  God),  it  was  liable.  If  it  did  not  so 
hold  them,  it  was  not  liable.  Jurists  have  not  agreed  as  to  the  obli- 
gation of  a  carrier  who  holds  goods  after  transit,  awaiting  delivery. 
Respecting  this  question,  "three  distinct  views  have  been  taken  :'-- 
First,  that  when  the  transit  is  ended,  and  the  carrier  has  placed  the 
goods  in  his  warehouse  to  await  delivery  to  the  consignee,  his  lia- 
bility as  carrier  is  ended  also,  and  he  is  responsible  as  warehouseman 
only ;  second,  that  merely  placing  the  goods  in  the  warehouse  does 
not  discharge  the  carrier,  but  that  he  remains  liable  as  such  until  the 
consignee  has  had  reasonable  time  after  their  arrival  to  inspect  and 
take  them  away  in  the  common  course  of  business;  third,  that  the 
liability  of  the  carrier  continues  until  the  consignee  has  been  notified 
of  the  receipt  of  the  goods,  and  has  had  reasonable  time,  in  the  com- 
mon course  of  business,  to  take  them  away  after  such  notification." 
See  opinion  of  Cooley,  J.,  in  McAIillan  v.  M.  S.  &  N.  I.  R.  Co.,  16. 
Mich.  102,  93  Am.  Dec.  208.  In  this  case  Justice  Christiancy  con- 
curred with  Justice  Cooley  in  holding  that  the  view  last  stated  w?=; 
correct,  while  Chief  Justice  Martin  concurred  with  Justice  Campbell  in 
holding  that  the  view  first  stated  was  correct.  In  the  subsequent  case 
of  Buckley  v.  Great  Western  Railway  Co.,  18  Mich.  121,  a  majority 
of  the  court,  consisting  of  Justices  Graves,  Cooley,  and  Christiancy, 
concurred  in  holding  that  the  liability  of  a  common  carrier  contin- 
ued a  reasonable  time  after  the  goods  were  placed  in  the  warehouse. 
There  was  no  occasion  for  them  to  decide,  and  they  did  not  decide, 
whether  that  reasonable  time  commenced  to  run  at  the  time  the  goods 
were  placed  in  the  warehouse,  or  at  the  time  notice  was  given  to  the 
consignee. 

We  are  unable  to  find  that  this  precise  question  has  ever  been  de- 
termined by  this  court.  It  is  necessary  for  us  to  determine  it  now. 
Without  undertaking  to  repeat  the  arguments  of  Justice  Cooley,  which 
are  familiar  to  all  careful  students  of  the  INIichigan  Reports,  it  is 
sufficient  to  say  that  they  are  so  clear  and  forceful  that  we  have  no 
hesitancy  in  declaring  that  the  carrier's  obligation  continues  until  the 
lapse  of  a  reasonable  time  after  he  has  notified  the  consignee  of  the 
arrival  of  the  goods.  This  conclusion  disposes  of  the  case,  and  re- 
sults in  an  affirmance  of  the  judgment. 

2  2  For  the  inrisdictions  in  which  these  views  severally  pi'evail,  see  Hutch- 
inson on  Carriers  (3(1  Ed.)  §§  702.  TOi.  708;  6  Cyc.  457-459;  Carriers,  9  Cent. 
Dig.  §§  316.  r>09.  609Vo ;   4  Dec.  Dig.  §  140. 

As  to  the  duty  of  notifying  the  consignee,  see  ante,  p.  143,  note  10. 


512  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

In  stating  this  conclusion,  we  have  not  overlooked  defendant's  con- 
tention that  the  rule  does  not  apply  where,  as  in  this  case,  plaintiffs 
knew  the  probable  date  of  shipment,  and  the  probable  time  of  arrival 
of  the  goods.  To  insist  that  this  circumstance  exempts  the  carrier 
from  liability  is  to  deny  the  existence  of  the  rule  we  have  just  de- 
clared. To  be  more  precise,  it  is  to  insist  that  the  second,  and  not 
the  third,  of  the  rules  heretofore  stated,  is  the  correct  one. 

This  is  clearly  shown  by  quoting  from  the  opinion  of  Justice  Cooley 
in  McMillan  v.  M.  S.  &  N.  I.  R.  Co.,  supra  :•  "The  rule  as  secondly 
above  stated  proceeds  upon  the  idea  that  the  consignee  will  be  in- 
formed by  the  consignor  of  any  shipment  of  freight,  and  that  it  then 
becomes  the  duty  of  the  former  to  take  notice  of  the  general  course 
of  business  of  the  carrier,  the  time  of  departure  and  arrival  of  trains, 
and  when,  therefore,  the  receipt  of  the  freight  may  be  expected,  and 
to  be  on  hand,  ready  to  take  it  away  when  received."  And  the  same 
learned  jurist,  in  stating  why  that  rule  should  be  rejected,  states  a 
sufficient  reason  for  denying  the  present  contention  of  defendant: 
"To  require  the  consignee  to  watch  from  day  to  day  the  arrival  of 
trains,  and  to  renew  his  inquiries  respecting  the  consignment,  seems 
to  me  to  be  imposing  a  burden  upon  him,  without  in  the  least  reliev- 
ing the  carrier.  For  it  can  hardly  be  doubted  that  it  would  be  less 
burdensome  to  the  carrier  to  be  required  to  give  notice,  than  to  be 
subjected  to  the  numberless  inquiries  and  examinations  of  his  books 
which  would  otherwise  be  necessary,  especially  at  important  points." 

In  support  of  its  position,  defendant  cites  several  cases  decided  by 
courts  who  deny  the  rule  declared  to  be  law  in  this  state.  It  is  scarce- 
ly necessary  to  say  that  decisions  of  a  court  denying  the  rule  afford  no 
aid  in  construing  it. 

Judgment  afffrmed,  with  costs. 


TEXAS  &  P.  RY.  CO.  V.  CLAYTON. 

(Circuit  Court  of  Appeals,  Second  Circuit,  1S97.    84  Fed.  305,  28  C.  C.  A.  142.) 

Action  for  loss  by  fire  of  cotton  shipped  over  the  line  of  defend- 
ant railway  company  under  bills  of  lading  which  provided  that  the 
goods  should  be  delivered  at  Liverpool,  England,  but  that  the  rail- 
way's liability  should  be  limited  to  its  own  line  and  its  contract  be 
fully  performed  upon  delivery  of  the  cotton  to  a  connecting  steamship 
line  at  New  Orleans.  Defendant  carried  the  cotton  to  a  wharf  owned 
by  it  at  Westwego,  within  the  port  of  New  Orleans.  Further  facts 
appear  in  the  opinion, 

Wallace,  J.^^  *  *  *  'pj-,g  course  of  business  between  the  de- 
fendant and  the  steamship  line  was  as  follows : 

2  3  Tlie  statement  of  facts  is  based  upon  facts  stated  in  the  original  opinion. 
Parts  of  the  original  opinion  are  here  omitted. 


Ch.  5)  DURATION    OF   LIABILITY.  513 

Upon  the  shipment  of  the  cotton  in  Texas,  bills  of  lading  would  be 
issued  to  the  shipper.  Thereupon  the  cotton  would  be  loaded  in  cars 
of  the  defendant,  and  a  waybill  giving-  the  number  and  initial  of  the 
car,  the  number  and  date  of  the  bill  of  lading,  the  date  of  the  ship- 
ment, the  names  of  consignor  and  consignee,  the  number  of  bales 
forwarded  on  that  particular  waybill,  the  marks  on  the  cotton,  the 
weight,  etc.,  would  be  given  to  the  conductor  of  the  train  bringing  the 
car  to  Westwego.  Upon  the  receipt  of  the  waybill  and  car  at  West- 
wego,  a  skeleton  .would  be  made  out  by  the  defendant's  clerks  at 
Westwego,  for  the  purpose  of  unloading  the  car  properly,  containing 
the  essential  items  of  information  covered  by  the  waybill  and  the 
date  of  the  making  of  the  skeleton.  When  this  skeleton  had  been  made 
out  and  the  car  had  been  side-tracked  at  the  rear  of  the  wharf,  the 
skeleton  would  be  taken  by  the  defendant's  check  clerk,  and  he  would 
proceed  with  a  gang  of  laborers  to  open  the  car.  The  cotton  would 
then  be  taken  from  the  car,  examined  to  see  that  the  marks  corre- 
sponded with  the  items  upon  the  skeleton,  and  deposited  in  one  of 
the  sheds  upon  the  wharf  designated  by  the  check  clerk,  and  the 
check  clerk  wovild  mark  upon  the  skeleton  the  location  of  the  cotton. 
The  sheds  were  subdivided  into  15  sections,  and  the  location  of  the 
cotton  was  left  to  the  check  clerk.  The  skeleton  would  then  be  trans- 
mitted to  the  general  office  of  the  defendant,  and  the  defendant  would 
make  out  a  "transfer  sheet,"  containing  substantially  the  information 
contained  in  the  waybill,  and  transmit  the  transfer  sheet  to  the  steam- 
ship line. 

The  steamship  line,  upon  receiving  the  transfer  sheet  understood 
that  cotton  for  their  vessels  was  on  the  wharf  at  Westwego,  and 
would  collate  the  transfers  relating  to  such  cotton  as  was  destined 
by  them  for  a  particular  vessel,  return  the  transfer  sheet  to  the  de- 
fendant, and  advise  defendant  what  vessel  would  take  the  cotton. 
Thereafter  the  steamship  company,  when  it  was  ready  to  take  the 
cotton,  would  send  the  vessel  with  their  stevedores  to  the  wharf. 
The  defendant's  clerk  would  go  with  the  master  of  the  vessel,  and 
identify  and  count  out  the  particular  lots  of  cotton  designated  for 
his  vessel.  The  master  would  "O.  K."  them,  and  the  stevedores  would 
thereupon  take  the  cotton,  and  put  it  on  board  the  ship.  Before  the 
cotton  left  the  wharf,  the  defendant  would  obtain  a  receipt  for  it 
from  the  master  of  the  ship. 

The  particular  cotton  involved  in  this  suit  had  arrived  and  been 
unloaded  upon  the  wharf  at  Westwego  prior  to  November  5th.  The 
transfer  sheets  had  been  transmitted  by  the  defendant  to  the  steam- 
ship line  prior  to  November  10th;  and  prior  to  November  12th  the 
steamship  line  had  returned  the  transfer  sheets  to  the  defendant. 
The  fire  occurred  upon  the  evening  of  November  12th.  In  the  fore- 
noon of  that  day  the  defendant  gave  notice  to  the  steamship  line  that 
the  cotton  was  upon  the  wharf,  and  requested  the  latter  to  come  and 
Green  Caer. — 33 


514  EXCErXIOXAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

remove  it  as  soon  as  practicable.  The  fire  took  place  without  any 
fault  or  negligence  on  the  part  of  the  defendant."*     *     *     * 

The  only  question  presented  by  the  assignments  of  error  is  whether 
the  trial  judge  correctly  ruled  that,  upon  the  whole  case,  plaintitfs 
were  entitled  to  recover.  It  was  assumed  by  both  parties,  each  hav- 
ing moved  that  a  verdict  be  directed,  that  there  was  no  disputed  ques- 
tion of  fact  for  the  jury. 

In  the  absence  of  a  special  contract  qualifying  the  ordinary  obli- 
gations of  a  common  carrier,  when  goods  are  delivered  to  a  railway 
company  for  transportation  to  a  destination  beyond  its  own  line 
through  the  intervention  of  a  connecting  carrier,  it  is  liable  as  an  in- 
surer of  the  goods  until  it  has  delivered  them  to  the  connecting  car- 
rier, or  unless,  by  the  refusal  or  inability  of  the  connecting  carrier 
to  receive  them,  it  is  justified  in  storing  them,  and  has  taken  the  neces- 
sary steps  to  occupy  the  relation  of  a  warehouseman.  Although  the 
second  carrier,  after  notice  and  a  request  to  do  so,  has  neglected  for 
an  unreasonable  time  to  receive  the  goods,  the  first  carrier  must, 
to  exonerate  himself  as  an  insurer,  in  some  way  clearly  indicate  his 
renunciation  of  the  relatioii  of  carrier.  Goold  v.  Chapin,  3U  N.  Y. 
259,  75  Am.  Dec.  398. 

It  was  said  by  the  court  in  Railroad  Co.  v.  Manufacturing  Co.,  16 
Wall.  318,  21  L.  Ed.  297,  that:  "The  rule  that  holds  the  carrier  only 
liable  to  the  extent  of  his  own  route,  and  for  the  safe  storage  and 
delivery  to  the  next  carrier,  is  in  itself  so  just  and  reasonable  that 
we  do  not  hesitate  to  give  it  our  sanction.  Public  policy,  however, 
requires  that  the  rule  should  be  enforced,  and  will  not  allow  the  car- 
rier to  escape  responsibility  on  storing  the  goods  at  the  end  of  his 
route,  without  delivering  or  attempting  to  deliver  to  the  connecting 
carrier.  If  there  be  a  necessity  for  storage,  it  will  be  considered  a 
mere  accessory  to  the  transportation,  and  not  as  changing  the  end  of 
the  bailment.  It  is  very  clear  that  the  simple  depositing  of  the  goods 
by  the  carrier  in  his  depot,  unaccompanied  by  any  act  indicating  an 
intention  to  renounce  the  obligation  of  a  carrier,  will  not  change  or 


24  T\Tien  this  case  came  before  the  Supreme  Court.  Harlan,  J.,  saifl:  "Couu- 
sel  for  the  railway  company  correctly  states  that  on  the  morning  of  the  fire, 
and  on  other  occasions  prior  thereto  both  in  October  and  November,  the 
officers  of  the  railwa.v  company  gave  verbal  notice  to  the  steam.ship  company 
that  the  cotton  v^-as  upon  the  wharf  ready  for  the  steamship  company  to  take 
away  and  made  request  that  the  same  should  be  removed ;  that  the  atten- 
tion of  the  officers  of  the  steamship  company  was  called  to  the  amount  of 
cotton  on  the  wharf  which  they  had  contracted  to  carry,  and  they  were  re- 
quested to  move  it  at  the  earliest  possible  moment  and  to  comply  with  their 
contract;  and  that  in  I'eply  they  said,  in  substance,  that  their  ships  had  been 
delayed,  the  principal  cause  being  certain  labor  troubles  then  existing  in 
New  Orleans  with  employes  of  the  steamship  companies,  and  another  cause 
being  the  bad  weather.  It  may  be  taken  as  established  by  the  evidence  that 
the  cotton  in  question  was  for  some  days  before  the  tire  in  a  position  on  the 
wharf  ready  to  be  taken  by  the  steamship  company." 


Ch.  5)  DURATION    OF  LIABILITY.  515 

modify  even  his  liability.  It  may  be  that  circumstances  may  arise 
after  the  g-oods  have  reached  the  depot  which  would  justify  the  car- 
rier in  warehousing  them;  but,  if  he  had  reasonable  grounds  to  an- 
ticipate the  occurrence  of  these  adverse  circumstances  when  he  re- 
ceived the  goods,  he  cannot,  by  storing  them,  change  his  relation 
towards  them." 

What  constitutes  a  sufficient  delivery  to  the  connecting  carrier  is 
sometimes  a  doubtful  question.  A  manual  transfer  of  possession  is 
not  essential.  A  constructive  change  of  possession  from  the  first  to 
the  second  carrier  may  amount  to  a  delivery.  It  may  be  safely  af- 
firmed, as  a  proposition  applicable  to  all  cases,  that  a  deposit  of  the 
goods  with  notice,  express  or  implied,  at  any  place  where  the  second 
carrier  has  control  of  them,  conformably  with  usage  created  by  the 
course  of  the  business  between  the  two  carriers,  is  a  sufficient  deliv- 
ery, and  discharges  the  first  carrier.  The  liability  of  the  second  car- 
rier begins  when  that  of  the  first  ends.     *    *     * 

In  Pratt  v.  Railway  Co.,  95  U.  S.  43,  24  L.  Ed.  336,  the  Michigan 
Central  Railroad  Company  and  the  Grand  Trunk  Railroad  Company 
used  a  freight  depot  of  the  former,  and  when  goods  were  deposited 
by  the  latter  in  a  certain  part  of  the  depot,  destined  over  the  road  of 
the  former,  they  were  set  apart  by  the  employes  of  the  latter ;  and, 
after  they  were  so  placed,  the  employes  of  the  Grand  Trunk  Railway 
did  not  further  handle  them.  After  being  so  set  apart,  the  Michigan 
Central  Railroad  Company  would  obtain  from  the  Grand  Trunk  Rail- 
way Company  a  list  describing  the  goods  and  their  ultimate  destina- 
tion, and  make  out  a  waybill  for  their  transportation  over  its  own 
road.  Certain  goods  which  had  been  thus  set  apart  for  transportation 
over  the  line  of  the  Michigan  Central  Railroad  Company  were  burned 
before  they  were  loaded  into  its  cars,  but  after  it  had  obtained  the  de- 
scriptive list.  It  was  held  that  there  had  been  a  delivery  by  the  Grand 
Trunk  Railway  Company  to  the  Michigan  Central  Railroad  Company. 
The  court  said:  "No  further  orders  or  directions  from  the  Grand 
Trunk  Company  were  expected  by  the  receiving  party.  Except  for 
the  occurrence  of  the  fire,  the  goods  would  have  been  loaded  into  the 
cars  of  the  Michigan  Central  Company,  and  forwarded  without  fur- 
ther action  of  the  Grand  Trunk  Company." 

In  the  present  case  the  cotton  had  never  been  placed  within  the 
control  of  the  steamship  line  by  the  defendant.  It  was  not  set  apart 
from  the  other  cotton  on  the  wharf,  awaiting  transportation  by  other 
steamship  lines  or  vessels,  further  than  by  placing  it,  when  unloaded 
from  the  cars,  near  certain  numbered  posts  in  the  shed,  where  it 
might  remain  until  called  for,  or  might  be  removed  by  the  defendant 
to  some  other  location,  to  suit  its  own  convenience.  Before  the  steam- 
ship line  could  have  identified  it  for  the  purpose  of  removal,  and 
after  that,  before  they  could  have  exercised  any  control  over  it,  the 
co-operation  and  assistance  of  the  defendant  were  necessary. 


516  EXCErTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

There  is  no  room  for  the  contention  that  the  defendant  had  ceased 
to  be  a  carrier  and  become  a  warehouseman.  It  had  done  no  act 
evidencing  its  intention  to  renounce  the  one  capacity,  and  assume  the 
other.  Ahhough  it  had  requested  the  steamship  hue  to  remove  the 
cotton,  it  had  not  specified  any  particular  time  within  which  comph- 
ance  was  insisted  on,  and  had  not  given  notice  that  the  cotton  would 
be  kept  or  stored  at  the  risk  of  the  steamship  hne  upon  failure  to 
comply  with  the  request.  The  request  to  come  and  remove  it  '*as 
soon  as  practicable"  was,  in  efifect,  one  to  remove  it  at  the  earliest 
convenience  of  the  steamship  line.  There  is  nothing  in  the  case  to 
indicate  that  the  defendant  had  not  acquiesced  in  the  delay  which  in- 
tervened between  the  request  and  the  fire. 

The  bills  of  lading  did  not  restrict  the  ordinary  liability  of  a  car- 
rier who  receives  goods  for  a  destination  beyond  its  own  line,  for 
transportation  by  a  connecting  carrier.  On  the  contrary,  the  contract 
between  the  parties  was  carefully  framed  to  adjust  the  liability  of 
the  carriers  as  between  themselves,  and  to  protect  the  shipper,  in  the 
€vent  of  a  disputable  custody  of  the  goods.  By  its  terms,  the  carrier, 
and  that  carrier  only,  "in  w^hose  actual  custody"  the  cotton  should 
"be,  was  to  be  liable  for  any  loss  or  damage  to  it  whereby  any  legal 
liability  might  be  incurred.  It  was  the  manifest  purpose  of  this  pro- 
vision to  define  the  rights  of  the  parties  to  the  contract  in  the  event 
of  doubt  or  dispute,  and  to  make  that  carrier  liable  only  who  was  in 
actual  custody  of  the  goods  at  the  time  of  the  loss,  irrespective  of 
the  question  whether  there  had  been  any  constructive  change  of  pos- 
session between  the  two  carriers  previously. 

A  verdict  for  the  plaintiffs  was  properly  directed.  The  judgment  is 
therefore  affirmed."^ 

2  3  Affirmea  173  U.  S.  PAS.  19  Sup.  Ct.  421,  43  L.  Ed.  725  (ISOO).  See,  also. 
Bennitt  v.  Mo.  Pac.  Rv.  Co..  4(i  Mo.  App.  656  (1891);  Grav  v.  Wabash  R.  Co., 
119  ]Mo.  App.  144.  95  S.  W.  988  (1906). 

"The  general  rule  of  law  is  that  an  intermediate  carrier,  who  receives 
goods  to  be  carried  to  a  point  short  of  their  final  destination,  is  bound  only 
to  use  reasonable  dilisence  to  secure  further  transportation  by  tendering  them 
to  the  connecting  line.  and.  if  acceptance  he  refused,  then  to  notify  the  con- 
signor or  consignee,  without  unreasonable  dela.v,  and  store  or  otherwise 
take  care  of  the  goods  while  awaiting  instructions.  Having  done  this,  the 
liability  of  the  carrier  as  such  will  cease,  and  the  liability  of  a  warehouse- 
man be  substituted."  Acheson,  J.,  in  Buston  v.  Pa.  R.  Co.,  119  Fed.  S08.  56 
C.  C.  A.  320  (1903).  And  see  I^sinsky  v.  Gt.  W.  Dis.  Co.,  ante,  p.  144.  But 
compare  Larimore  v.  Chicago,  etc.,  R.  Co.,  65  Mo.  App.  167  (189t)). 

For  a  carrier's  liability  for  goods  whose  delivery  has  been  countermanded, 
see  Rosenthal  v.  Weir,  170  N.  Y.  148,  63  N.  Et  65, '57  L.  R.  A.  527  (1902);  St. 
Louis,  etc.,  Co.  v.  Montgomery,  ante,  p.  486. 


Ch.  5)  DURATIOX    OF   LIABILITY.  51T 


DODGE  V.  BOSTON  &  B.  S.  S.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1889.    148  Mass.  207,  10  X.  E.  373, 
2  L.  R.  A.  83,  12  Am.  St.  Rep.  541.) 

Tort  against  a  common  carrier  for  personal  injuries.  The  plaintiff, 
a  passenger  by  defendant's  steamboat  from  Boston  to  Camden,  left 
the  boat  on  arrival  at  Rockland,  an  intermediate  landing  place,  to 
get  breakfast  at  a  restaurant  on  the  wharf.  The  part  of  the  wharf 
where  the  steamboat  lay  was  leased  to  defendant.  The  restaurant 
was  at  another  part  of  the  wharf,  and  was  maintained  by  the  owner 
of  the  wharf.  Plaintiff  left  the  steamboat  at  a  gangway  used  for 
loading  and  discharging  baggage  and  cargo,  and  not  intended  for 
passengers.  He  made  his  exit  over  a  plank  which  had  been  run  out 
from  the  vessel  to  an  inclined  slip  which  formed  part  of  the  wharf, 
and  had  left  the  plank  and  got  two-thirds  of  the  way  up  the  slip,  when 
he  was  struck  by  a  larger  gang  plank  which  defendant's  servants  were 
bringing  down  the  slip.  Thereby  he  received  the  injury  for  which 
he  sued.  Plaintiff  might  have  had  breakfast  on  board  the  boat.  There 
was  a  safe  means  of  egress  to  the  wharf  for  passengers,  which  plain- 
tiff might  have  used.  Plaintiff  had  a  verdict.  The  case  came  up  on 
exceptions  to  instructions  which  appear  in  the  opinion. 

Knowlton,  J.-°  This  case  presents  an  important  question  as  to 
the  rights  and  duties  of  passengers  and  common  carriers  in  reference 
to  egress  from  and  ingress  to  the  vehicle  of  transportation  at  inter- 
mediate points  upon  a  journey.  When  one  has  made  a  contract  for 
passage  upon  a  vehicle  of  a  common  carrier,  and  has  presented  him- 
self at  the  proper  place  to  be  transported,  his  right  to  care  and  pro- 
tection begins,  and  ordinarily  it  continues  until  he  has  arrived  at  his 
destination,  and  reached  the  point  where  the  carrier  is  accustomed  to 
receive  and  discharge  passengers.  So  long  as  he  stands  strictly  in 
this  relation  of  a  passenger,  the  carrier  is  held  to  the  highest  degree 
of  care  for  his  safety.  While  he  is  upon  the  premises  of  the  carrier, 
before  he  has  reached  the  place  designed  for  use  by  passengers  wait- 
ing to  be  carried,  or  put  himself  in  readiness  for  the  performance  of 
the  contract,  the  carrier  owes  him  the  duty  of  ordinary  care,  as  he  i? 
a  person  rightfully  there  by  invitation.  It  has  sometimes  been  said 
that  a  passenger  at  the  end  of  his  journey  retains  the  same  relation 
to  the  carrier  until  he  has  left  the  carrier's  premises.  But  there  are 
other  cases  which  indicate  that  the  contract  of  carriage  is  performed 
when  the  passenger  at  the  end  of  his  journey  has  reached  a  safe  and 
proper  place,  where  persons  seeking  to  become  passengers  are  regu- 
larly received,  and  passengers  are  regularly  discharged,  and  that  the 
degree  of  care  to  which  he  is  then  entitled  is  less  than  during  the  con- 

26  The  statement  of  facts  has  been  rewritten.  Parts  of  the  opinion  are 
omitted. 


518  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

tinuance  of  his  contract,  as  a  carrier  of  goods  is  held  to  a  liabihty 
less  strict  after  they  have  reached  their  destination  and  been  put  in 
a  freight-house  than  while  they  are  in  transit. 

There  is  sometimes  occasion  to  leave  the  boat,  or  car,  or  carriage, 
and  return  to  it  again  before  the  contract  is  fully  performed;  and 
it  is  necessary  to  determine  what  are  the  rights  and  duties  of  the 
parties  at  such  a  time.  Whenever  performance  of  the  contract  in  a 
usual  and  proper  way  necessarily  involves  leaving  a  vehicle  and  re- 
turning to  it,  a  passenger  is  entitled  to  protection  as  such,  as  well 
while  so  leaving  and  returning  as  at  any  other  time ;  and  this  has  been 
held  in  cases  where,  in  accordance  with  arrangements  of  the  railroad 
companies,  passengers  by  railway  left  their  train  to  obtain  refresh- 
ments. Peniston  v.  Chicago,  etc.,  R.  R.,  34  La.  Ann.  777,  44  Am. 
R.  444;  Jeffersonville,  etc.,  R.  R.  v.  Riley,  39  Ind.  568.  So  where 
a  railroad  company  undertakes  to  carry  a  passenger  a  long  distance 
upon  its  line,  and  sells  him  a  ticket  upon  which  he  may  stop  at  in- 
termediate stations,  in  getting  on  and  off  the  train  at  any  station 
where  he  chooses  to  stop,  he  has  the  rights  of  a  passenger.  Of  course, 
during  the  interval  between  his  departure  from  the  station  and  his 
return  to  it  to  resume  his  journey,  he  is  not  a  passenger. 

To  determine  the  rights  of  the  parties  in  every  case,  the  ques- 
tion to  be  answered  is :  What  shall  they  be  deemed  to  have  contem- 
plated by  their  contract?  The  passenger,  without  losing  his  rights 
while  he  is  in  those  places  to  which  the  carrier's  care  should  extend, 
may  do  whatever  is  naturally  and  ordinarily  incidental  to  his  pas- 
sage. If  there  are  telegraph  offices  at  stations  along  a  railroad,  and 
the  carrier  furnishes  in  its  cars  blanks  upon  which  to  write  tele- 
graphic messages,  and  stops  its  trains  at  stations  long  enough  to  en- 
able passengers  conveniently  to  send  such  messages,  a  purchaser  of 
a  ticket  over  a  railroad  has  a  right  to  suppose  that  his  contract  per- 
mits him  to  leave  his  car  at  a  station  for  the  purpose  of  sending  a 
telegraphic  message;  and  he  has  the  rights  of  a  passenger  while 
alighting  from  the  train  for  that  purpose,  and  while  getting  upon  it 
to  resume  his  journey.  So  of  one  who  leaves  a  train  to  obtain  re- 
freshment, where  it  is  reasonable  and  proper  for  him  so  to  do,  and 
is  consistent  with  the  safe  continuance  of  his  journey  in  a  usual  way. 
W^here  one  engages  transportation  for  himself  by  a  conveyance  which 
stops  from  time  to  time  along  his  route,  it  may  well  be  implied,  in 
the  absence  of  anything  to  the  contrary,  that  he  has  permission  to 
alight  for  his  own  convenience  at  any  regular  stopping-place  for  pas- 
sengers, so  long  as  he  properly  regards  all  the  carrier's  rules  and  reg- 
ulations, and  provided  that  his  doing  so  does  not  interfere  with  the 
carrier  in  the  performance  of  his  duties. 

In  the  case  of  Keokuk  Northern  Line  Packet  Co.  v.  True,  88  111. 
608,  a  plaintiff  before  reaching  his  destination  was  going  ashore 
for  his  own  convenience  at  a  place  where  the  boat  stopped  for  two 


Ch.  5)  DURATION    OF   LIABILITY.  519 

hours,  and  was  injured  on  the  gangway  plank.  It  was  held  that  he 
was  to  be  treated  as  a  passenger,  and  that  the  defendant  was  bound 
to  use  the  utmost  care  for  his  safety.    *    *     * 

Upon  the  undisputed  facts  of  the  case  at  bar,  we  are  of  opinion 
that  the  plaintiff,  as  a  passenger,  could  properly  go  on  shore  to  get 
his  breakfast  at  Rockland,  and  that  he  had  a  passenger's  right  to  pro- 
tection during  his  egress  from  the  steamer.  The  first  seven  of  the 
defendant's  requests  for  instructions  were  rightly  refused. 

The  defendant's  tenth  request  was  for  an  instruction  that  if  the 
plaintiff'  was  justified  in  leaving  the  steamer  as  he  did,  the  "defend- 
ant did  not  owe  him  so  high  a  degree  of  care  after  he  had  left  the 
steamer  and  was  out  upon  the  slip  as  it  owed  him  while  he  remained 
upon  or  within  the  steamer.''  This  request  referred  to  the  degree  of 
care  which  the  law  requires  of  carriers  of  passengers,  as  distinguished 
from  the  ordinary  care  required  of  men  in  their  common  relations  to 
each  other.     *     *     * 

It  may  be  assumed  that  the  plaintiff  would  have  ceased  for  the 
time  to  be  a  passenger,  if  he  had  left  the  steamer  and  gone  away 
for  his  breakfast.  But  he  was  injured  before  he  had  completed  his 
exit.  Inasmuch  as  he  had  a  passenger's  right  of  egress,  this  request 
for  an  instruction  was  rightly  refused.  For,  while  he  was  a  pas- 
senger, the  degree  of  care  to  be  exercised  towards  him  did  not  de- 
pend upon  whether  he  was  on  the  steamer,  or  on  the  plank,  or  the 
slip.  It  was  the  same  in  either  place.  But  in  deterniining  what  is 
the  utmost  care  and  diligence  within  the  meaning  of  this  rule,  it  is 
always  necessary  to  consider  what  is  reasonable  under  the  circum- 
stances. The  decision  in  Moreland  v.  Boston,  etc.,  R.  R.,  141  Mass. 
31,  6  N.  E.  225,  was  made  to  rest  upon  the  inaccuracy  of  the  instruc- 
tions as  to  the  degree  of  care  required  of  passengers,  and  it  is  not  an 
authority  for  the  defendant  in  the  present  case. 

In  its  eighth  request  the  defendant  asked  for  an  instruction  as  to 
the  rights  of  a  passenger  acting  in  disobedience  of  an  order  or  regu- 
lation of  a  carrier.  The  evidence  was  undisputed,  that  the  defendant 
had  provided  a  safe  and  convenient  place  for  passengers  to  land  from 
the  saloon  deck,  and  that  the  place  where  the  plaintiff  was  injured  was 
not  intended  for  use  by  passengers.  The  judge  said  in  his  charge: 
"The  plaintiff  does  not  now  claim  that  the  defendant  did  not  furnish 
proper  means  of  egress  from  the  saloon  deck,  nor  do  I  understand 
that  the  plaintiff  now  claims  that  the  defendant  intended  the  gang- 
way, which  was  in  fact  used  by  the  plaintiff',  for  use  by  passengers 
leaving  the  boat."  We  must  therefore  assume  that  the  court  and  the 
parties  treated  these  matters  as  undisputed  facts  of  the  case,  and, 
upon  these  facts,  a  warning  to  the  plaintiff  not  to  leave  the  steamer 
from  the  gangway  by  which  he  went  w^as  a  reasonable  order  or  regu- 
lation. A  passenger  is  bound  to  obey  all  reasonable  rules  and  orders 
of  a  carrier  in  reference  to  the  business.  The  carrier  may  assume  that 
he  will  obev.     And  the  carrier  owes  him  no  duty  to  provide  for  his 


520  EXCEPTIONAL   LIABILITY   OF  COMMON  CARRIER.  (Part   4 

safety  when  acting  in  disobedience.  His  neglect  of  his  duty  in  dis- 
obeying, in  the  absence  of  a  good  reason  for  it,  will  prevent  his  re- 
covery for  an  injury  growing  out  of  it. 

This  request,  as  applied  to  the  admitted  facts  of  the  case,  and  to 
a  fact  which  the  jury  might  have  found  from  the  evidence,  contained 
a  correct  statement  of  the  law.  Ellis  v.  Narragansett  Steamship  Co., 
Ill  Mass.  146;  Pennsylvania  R.  R.  v.  Zebe,  33  Pa.  318;  :\lcDonald 
v.  Chicago,  etc.,  R.  R.,  26  Iowa,  124,  142,  96  Am.  Dec.  114;  Glea- 
son  v.  Goodrich  Transp.  Co.,  32  Wis.  85,  14  Am.  Rep.  716.  We  are 
of  opinion  that  the  jury  should  have  been  instructed  in  accordance 
with  it.  It  was  not  a  request  for  an  instruction  merely  as  to  the  ef- 
fect of  a  part  of  the  evidence  upon  a  particular  subject.  It  was  rather 
a  request  for  a  statement  of  the  law  applicable  to  one  phase  of  the 
case,  which  involved  a  consideration  of  all  the  evidence  relative  to 
that  phase  of  it.  And  if  by  the  word  "notified."  in  the  ninth  request, 
was  meant  the  giving  of  a  notification  intelligibly,  so  as  to  make  it 
understood  by  the  plaintifif,  the  same  considerations  apply  also  to  that 
request. 

No  instructions  were  given  upon  this  subject,  and  because  of  this 
error  the  entry  must  be,  exceptions  sustained.^ ^ 


CREAMER  V.  WEST  END  ST.  RY.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1892.    156  Mass.  320,  31  N.  E.  301,. 
10  L.  R.  A.  490,  32  Am.  St.  Rep.  4.j(;.) 

Barker,  J.-®  The  plaintiff's  intestate  was  instantly  killed  on  War- 
ren street  by  an  electric  car,  which,  it  was  testified,  was  running  at  a 
speed  of  15  miles  an  hour.  His  death,  under  such  circumstances,  gave 
the  plaintifif  a  right  to  maintain  the  action  under  St.  1886,  c.  140,  if, 
when  killed,  he  was  a  passenger,  or  if,  not  being  a  passenger,  he  was 

2  7  Ace.  Ala.,  etc.,  Ry.  Co.  v.  Cojrgins,  88  Fed.  455,  32  C.  C.  A.  1  (1898).  pas- 
senger going  to  inqiiire  for  telegram;  Galveston,  etc.,  Ry.  Co.  v.  Mathes 
(Tex.  Civ.  A]ip.)  73  S.  W.  411  (1903).  passenger  in  act  of  alighting  at  inter- 
mediate station;  Hrebrilv  v.  Carr  (D.  C.)  29  Fed.  298  (1880),  leaving  stean}- 
boat  liy  gangplank  to  l)uy  tobacco.  Compare  Chicago,  etc.,  R.  Co.  v.  Sattler. 
64  Neb.  030.  90  N.  W.  049,  57  L.  R.  A.  890,  97  Am.  St.  Rep.  606  (1902),  getting 
off  train  stopped  on  siding. 

In  Zeccardi  v.  Yonkers,  etc.,  R.  Co.,  113  App.  Div.  049,  99  N.  Y.  Supp.  936 
(1900),  a  conductor  ejected  a  passenger  and  assaulted  him  in  the  street. 
Plaintiff,  a  fellow  passenger,  left  the  car  to  stop  the  fight,  and  was  assault- 
ed by  tlie  motorman.  In  an  action  against  the  carrier  for  the  motorman's 
assault,  it  was  held  to  be  error  to  dismiss  the  case.  The  court  said:  "By 
stepping  off  the  car  to  stop  the  battery,  he  no  more  ceases  to  be  a  passenger 
thau  if  he  stepped  off  to  pick  up  his  hat  or  take  a  drink  of  water." 

Compare  Central  Ry.  Co.  v.  Peacock,  09  Md.  257,  14  Atl.  709,  9  Am.  St. 
Rep.  425  (1888),  where  a  street  railway  company  was  held  not  to  be  liable  for 
a  conductor's  assault  on  one  who,  without  evincing  his  intention  to  return,, 
had  temporarily  left  the  car  to  make  a  complaint  against  the  conductor. 

2  3  Parts  of  the  opinion  are  omitted. 


Ch.  5)  DL'RATIOX    OF   LIABILITY.  521 

in  the  exercise  of  due  diligence.  He  had  ridden  as  a  passenger  upon 
another  car,  which  he  had  left  immediately  before  he  was  killed. 
When  struck  he  was  walking  across  Warren  street,  having  taken  one 
or  two  steps  from  the  place  where  he  had  touched  the  ground  on  leav- 
ing his  car,  and  was  between  the  rails  of  the  track  on  which  was  the 
car  by  which  he  was  struck.  He  had  not  reached  or  had  time  to  reach 
the  sidewalk  of  Warren  street,  but  he  had  left  the  car  on  which  he 
had  been  a  passenger,  and  had  begun  his  progress  on  foot  across  the 
street. 

We  are  of  the  opinion  that  he  was  not  a  passenger  when  the  ac- 
cident occurred,  and  that  he  ceased  to  be  a  passenger  when  he  alight- 
ed upon  the  street  from  his  car.  The  street  is  in  no  sense  a  passenger 
station,  for  the  safety  of  which  a  street  railway  company  is  respon- 
sible. When  a  passenger  steps  from  the  car  upon  the  street,  he  be- 
comes a  traveler  upon  the  highway,  and  terminates  his  relations  and 
rights  as  a  passenger,  and  the  railway  company  is  not  responsible 
to  him  as  a  carrier  for  the  condition  of  the  street,  or  for  his  safe  pas- 
sage from  the  car  to  the  sidewalk.  When  a  common  carrier  has  the 
exclusive  occupation  of  its  tracks  and  stations,  and  can  arrange  and 
manage  them  as  it  sees  fit,  it  may  be  properly  held  that  persons  in- 
tending to  take  passage  upon  or  to  leave  a  train  have  the  relation  and 
rights  of  passengers  in  leaving  or  approaching  the  cars  at  a  station. 
Warren  v.  Railroad  Co.,  8  Allen,  227,  85  Am.  Dec.  700;  McKimble 
v.  Railroad  Co.,  139  Mass.  542,  2  N.  E.  97;  Dodgfe  v.  Steamship 
Co.  [ante,  p.  517].  But  one  who  steps  from  a  street  railway  car  to  the 
street  is  not  upon  the  premises  of  the  railway  company,  but  upon  a  pub- 
lic place,  where  he  has  the  same  rights  with  every  other  occupier,  and 
over  which  the  company  has  no  control.  His  rights  are  those  of  a 
traveler  upon  the  highway,  and  not  of  a  passenger. 

The  plaintiff,  therefore,  cannot  recover  unless  she  shows  by  af- 
firmative evidence  that  the  deceased  was  in  the  exercise  of  due  dili- 
gence to  avoid  injury  in  traveling  upon  the  street.     *     *     * 

Before  the  car  actually  stopped,  and  when  the  deceased  was  within 
5  or  10  feet  of  the  crosswalk,  he  rose  from  his  seat,  and  immediately 
stepped  off  the  car,  at  right  angles  to  the  left.  His  car  had  slowed 
up,  but  was  still  in  motion  when  he  left  it;  and  he  stepped  in  front 
of  another  car  going  northerly  upon  the  other  track,  and  was  in- 
stantly killed.  The  car  on  which  he  had  been  riding  came  to  a  stop 
a  few  feet  farther  on.  The  car  which  struck  him  was  coming  down 
hill,  and  was  moving  at  a  speed  of  15  miles  an  hour.     *    *    * 

We  do  not,  of  course,  hold  that  it  is,  as  a  matter  of  law,  negligent 
for  one  to  leave  a  street  car  while  it  is  in  motion,  or  to  attempt  to 
cross  a  street  car  track  without  looking  to  see  whether  a  car  is  ap- 
proaching; but  neither  of  these  acts  is  evidence  of  due  care,  and  we 
cannot  discover  in  the  testimony  reported  any  evidence  that  the  de- 
ceased exercised  care  or  attention  of  any  kind  or  degree.     On  the 


522  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part   4 

contrary,  the  undisputed  evidence  shows  that,  in  spite  of  warnings 
from  those  in  his  immediate  vicinity,  he  suddenly,  without  precau- 
tion, precipitated  himself  into  a  position  of  great  and  obvious  danger. 
He  no  doubt  had  a  right  to  expect  that  any  cars  which  might  be  upon 
the  other  track  would  not  run  at  a  dangerous  rate  of  speed,  and  would 
be  lawfully  managed ;  but  this  expectation  could  not  excuse  him  from 
the  exercise  of  all  proper  care,  and  does  not  relieve  the  plaintiff  from 
the  obligation  of  proving,  by  positive  affirmative  evidence,  that  the 
deceased  was  in  fact  in  the  exercise  of  due  diligence.  As  there  was 
no  such  evidence,  a  verdict  for  the  defendant  was  rightly  ordered. 
Judgment  on  the  verdict.^® 


BRUNSWICK  &  W.  RY.  CO.  v.  MOORE. 

(Supreme  Court  of  Georgia,  1897.     101  Ga.  G84,  28  S.  E.  1000.) 

Atkinson,  J.^°  The  questions  made  in  this  case  arose  upon  the 
following  state  of  facts :  Aaron  Moore,  as  next  friend  of  his  son 
AMlliam,  sued  the  railroad  company,  and  obtained  a  verdict  for  $3,- 
000.  Defendant  made  a  motion  for  a  new  trial,  which  being  over- 
ruled, it  excepted.  The  material  testimony  introduced  upon  the  trial 
may  be  stated  as  follows :  William  Moore  testified  that  he  was  17 
years  of  age;  that  he  and  eight  other  boys  entered  defendant's  train 
at  Alapaha,  and  traveled  thereon  as  passengers  to  Willacoochee,  a 
distance  of  11  miles,  on  the  night  of  February  9,  1896.  The  train 
stopped  at  Willacoochee  not  more  than  four  or  five  seconds,  just  long 
enough  for  Moore  to  leave  it.  He  had  just  reached  the  ground,  and 
taken  two  steps,  when  a  shot  from  a  pistol,  fired  by  the  conductor  of 
the  train,  struck  him  in  the  leg.     *     *     * 

n  he  were  a  passenger  at  the  time  the  injuries  were  inflicted  upon 
him  for  which  he  brings  this  action,  he  was  entitled  to  recover,  for 
he  is  entitled,  by  virtue  of  his  contract  of  passenger  carriage,  not  only 
to  be  protected  against  the  consequences  of  the  negligent  acts  of  the 
company's  agents,  resulting  from  the  omission  to  perform  its  duties 
towards  the  passenger,  but  he  is  likewise  entitled  to  be  protected 
against  the  wanton  and  willful  acts  of  violence  wrongfully  com- 
mitted upon  his  person  by  the  servants  of  the  company  during  the 
continuance  of  the  relation  instituted  by  his  contract  with  the  com- 
pany. Whether  or  not  he  was  a  passenger  at  the  time  the  injuries 
were  inflicted  upon  him  depends  upon  whether,  at  that  time,  it  had 

20  Ace.  Indianapolis,  etc.,  Co.  v.  Tenner,  32  Ind.  App.  311.  67  X.  E.  1041 
{1003»;  Hanson  v.  Urbana  &  C.  R.  Co.,  75  111.  App.  474  (1808);  Street  K.  K. 
V.  Boddy.  IO.j  Tenn.  G6<3.  .58  S.  W.  64G.  51  L,  R.  A.  885  (1SX)0).  Compare  Atlan- 
ta, etc.,  Co.  V.  Bates,  103  Ga.  333,  30  S.  E.  41  (1898). 

30  Part  of  the  opinion  has  been  omitted* 


Ch.  5)  DURATION    OF   LIABILITY.  523 

completed  its  contract  of  carriage  with  him,  and,  in  the  legal  sense, 
delivered  him  at  the  point  of  destination.  There  was  no  voluntary 
abandonment  by  this  passenger  of  his  right  safely  to  be  delivered  at 
the  point  of  destination  in  accordance  with  the  contract  under  which 
he  entered  the  company's  cars.  Its  servants  did  not,  for  any  improp- 
er conduct  upon  his  part,  seek  to  expel  him  from  the  car,  and  thus 
terminate  the  relation  of  carrier  and  passenger;  so  that  the  relation 
of  carrier  and  passenger,  having  commenced,  continued  until  the  car- 
rier liad  fully  performed  its  contract  of  carriage. 

It  does  not  satisfy  the  requirements  of  this  contract  that  the  pas- 
senger should  have  been  safely  transported  to  the  point  at  which  he 
was  expected  to,  and  did,  leave  the  car  of  the  company.  Until  he  had 
actually  left,  or  had  had  a  reasonable  time  within  which  to  leave,  the 
premises  of  the  company  at  the  point  of  destination,  he  was  still  a 
passenger,  and  entitled,  as  against  the  company,  to  all  the  rights  and 
immunities  of  a  passenger. ^^  This  was  the  rule  laid  down  by  the 
court  in  its  instruction  to  the  jury.  It  was  the  correct  rule,  and  con- 
sequently this  instruction  afforded  no  ground  for  the  granting  of  a 
new  trial.  2  Am.  &  Eng.  Enc.  Law,  p.  745,  and  cases  there  cited; 
4  Elliott,  R.  R.  §  1592.  Whether  or  not  the  plaintifif's  version  of  this 
transaction  was  true  was  a  question  of  fact  for  the  jury.  They  be- 
lieved it.  returned  a  verdict  in  his  favor,  and  the  trial  judge  has  ap- 
proved their  finding.    It  is  amply  supported  by  the  evidence.     In  view 

31  Ace.  Houston,  etc..  Co.  v.  Batchler,  .32  Tex.  Civ.  App.  14,  73  S.  W.  981 
(1003).  passen,2:er  assaulted  on  station  platform;  So.  Ry.  Co.  v.  Nelson,  14S 
Ala.  SS.  41  South.  3000  (1000),  arrested  at  station  for  alleged  failure  to  pay 
fare;  McKimble  v.  B.  &  M.  K.  Co..  141  Mass.  463,  5  N.  E.  804  (1886),  leaving 
train  on  side  away  from  station  and  crossing  trade;  Cliicago.  etc.,  R.  Co.  v. 
Tracey,  109  111.  App.  563  (190.3),  same  point';  Pa.  Co.  v.  McCaffrey,  173  111. 
169,  50  N.  E.  713  (1808),  semlile,  passenger  leaving  train  stopped  at  crossing 
of  public  street  and  attempting  to  cross  traclv ;  Chesapeake,  etc.,  R.  Co.  v. 
King,  99  Fed.  251,  40  C.  C.  A.  432,  49  L.  R.  A.  102  ('1900).  alighting  and  cross- 
ing track.  Compare  Allerton  v.  B.  &  M.  R.  Co.,  146  :Mass.  241.  15  N.  E.  G21 
(1888),  crossing  traclv  in  public  street ;  Pittsburgh,  etc.,  Ry.  Co.  v.  Krouse, 
30  Ohio  St.  222  (1876).  re-entering  train  in  search  of  conductor  ;  Hendrick  v.  Chi- 
cago, etc.,  R.  Co.,  136  Mo.  548.  38  S.  W.  297  (1896),  walking  down  station 
platform  to  speak  to  engineer;  St.  Louis,  etc..  Ry.  Co.  v.  Beecher,  65  Ark.  64. 
44  S.  W.  715  (1898),  walking  home  on  railroad  track:  Krautz  v.  Rio  Grande, 
etc.,  Co..  12  Utah.  104.  41  Pac.  717,  30  L.  R.  A.  297  (1895),  peddler  preparing  to 
sell  wares  at  station ;  Finnegan  v.  Chicago,  etc.,  Co.,  48  Minn.  378,  51  N. 
W.  122.  15  L.  R.  A.  399  (1892),  person  leaving  train  he  has  taken  by  mis- 
take, and  walking  at  the  direction  of  the  conductor  along  the  track  at  a 
place  not  designed  for  passengers  to  take  his  proper  train  ;  King  v.  Cent, 
of  Ga.  R.v.  Co..  107  Ga.  754.  .33  S.  E.  839  (1899),  person  waiting  midway  on  his 
journey  for  connecting  train,  who  crossed  carrier's  premises  at  place  intended 
for  passengers,  on  his  way  from  hotel  to  shop,  and  not  for  purpose  of  taking 
train. 

"When  appellant  left  the  train,  appellee  owed  him  no  duty  except  to  give 
him  a  safe  way  in  which  to  leave  the  premises  of  the  railway  company,  and 
if  he  returned  to  the  train  after  having  once  disembarked  therefrom,  for  the 
purpose  of  using  it  as  a  mode  of  crossing  to  the  other  side  of  the  track,  he 
was  a  trespasser,  and  appellant  owed  him  no  duty,  except  not  to  hurt  him, 
if  it  discovered  him  in  a  place  of  pei-il."  Fly,  J.,  in  Ratteree  v.  Galveston, 
etc.,  Ry.  Co.,  36  Tex.  Civ.  App.  197,  81  S.  W.  566  (1904). 


524  EXCEPTIONAL   LIABILITY   OF   COMMON  CARRIER.  (Part  4 

of  the  circumstances  under  which  the  injury  occurred,  the  nature  of 
the  wounds  inflicted,  it  was  not  excessive,  and  this  court  will  not  con- 
trol the  discretion  of  the  trial  judge  in  refusing  to  grant  a  new  trial. 
Judgment  affirmed.     All  the  Justices  concurring. 


St.  LOUIS  SOUTHWESTERN  RY.  CO.  OF  TEXAS 
V.  BRYANT. 

(Court  of  Civil  Appeals  of  Texas,  190G.     92  S.  W.  813.) 

Action  for  personal  injury  alleged  to  have  been  received  through 
the  negligence  of  defendant  railroad  company  in  starting  its  train 
as  plaintiff,  a  passenger,  was  in  the  act  of  alighting  at  the  station  of 
his  destination.  There  was  evidence  that  plaintiff,  when  getting  off 
the  train,  stopped  for  some  time  upon  the  platform  of  a  car  to  buy 
a  paper  of  a  newsboy  there,  and  that  the  car  had  moved  15  or  ".^0 
feet  when  he  stepped  off  with  grips  in  his  hand.  Plaintiff  had  a  ver- 
dict and  judgment.     Defendant  appeals. 

Talbot,  J.^-  *  *  *  Complaint  is  made  of  the  court's  action  in 
refusing  to  give  appellant's  requested  instruction  which  reads  as  fol- 
lows: "If  you  believe  from  the  evidence  that  the  employes  of  de- 
fendant stopped  the  train  at  Chandler  a  reasonably  sufficient  time 
for  a  passenger  situated  as  was  plaintiff  to  depart  therefrom,  and  if 
you  should  further  believe  that  the  plaintiff  delayed  getting  off  said 
train  from  any  cause,  and  that  this  delay,  if  any,  was  unknown  to 
defendant,  then  you  are  charged  that  his  contract  relation  with  de- 
fendant ceased  at  the  expiration  of  such  reasonable  time,  if  any,  and 
the  defendant  could  become  liable  only  through  failure  of  its  servants 
to  exercise  ordinary  care  against  inflicting  injury  upon  plaintiff."'  The 
refusal  to  give  this  charge  was  error  for  which  the  judgment  must 
be  reversed  and  the  cause  remanded  for  a  new  trial. ^^     *     *     * 

32  The  statement  of  facts  is  based  upou  facts  stated  in  the  opiniou.  Parts 
of  the  opinion  are  omitted. 

3  3  Ace.  Chicago,  etc.,  Co.  v.  Frazer.  "^  Kan.  582,  40  Pac.  92.3  (189.51;  Heiu- 
lein  V.  B.  &  P.  R.  Co..  147  Mass.  1.3G.  IG  X.  E.  G98.  9  Am.  St.  Rep.  676  (1888), 
loitering  at  station;  Glenn  v.  L.  E.  »&  W.  R.  Co..  l(5.i  Ind.  6.i9.  7.j  X.  E.  282, 
2  L,  R.  A.  (N.  S.)  872.  112  Am.  St  Rep.  2o.'>  (190.-)),  loitering  at  station;  Hud- 
son T.  Lynn  &  B.  R.  Co.,  185  Mass.  510,  71  N.  E.  6(5  (1904).  carrier  unable  to 
collect  fare  because  passenger  in  a  stupor.  Compare  Doran  v.  East  River 
Ferry  Co.,  3  Lans.  (N.  Y.)  105  (1870).  remaining  on  board  throughout  return 
trip  without  demand  or  pavment  of  return  fare;  Bass  v.  Cleveland,  etc..  Rv. 
Co.,  142  Mich.  177.  105  X.  W.  151.  2  L.  R.  A.  (X.  S.)  875  (1905).  sleeping 
passenger  not  awakened  by  carrier;  Chicago,  etc.,  R.  Co.  v.  Wood.  104  Fed. 
663,  44  C.  C.  A.  118  (1900),  passenger  intending  to  stay  in  station  longer  than 
he  would  be  entitled  to  stay.  For  the  status  of  a  person  changing  cars  at 
a  union  station  of  connecting  carriers,  see  Davis  v,  Houston,  etc.,  R.  Co.,  25 
Tex.  Civ.  App.  S,  59  S.  W.  844  (1900). 


PART  V 

THE  COMMON  CARRIER'S  DUTY  TO  SERVE 


CHAPTER  I 
EXTENT  OF  OBLIGATION  TO  SERVE 


BENNETT  v.  BUTTON. 

(Superior  Court  of  Judicature  of  New  Hampslaire,  1839.     10  X.  11.  4S1.) 

Case  for  refusing  to  receive  plaintiff  as  a  passenger  in  defendant's 
coach.  The  evidence  showed  that  rival  lines  of  daily  stages  were 
run  from  Lowell  to  Nashua,  one  of  which,  operated  by  French,  ran 
in  connection  with  defendant's  line,  which  extended  from  Nashua  to 
Amherst  and  beyond;  the  two  lines  by  agreement  between  their  pro- 
prietors forming  a  through  route  for  the  carriage  of  passengers  and 
mail.  The  contract  with  the  government  for  the  carriage  of  mail 
required  that  connecting  coaches  forming  a  mail  route  should  give 
preference  to  each  other's  passengers.  Defendant  had  further  agreed 
with  French  not  to  carry  on  the  same  day  that  he  arrived  any  passen- 
ger who  came  from  Lowell  to  Nashua  by  the  rival  line.  The  plain- 
tiff took  the  rival  line  at  Lowell,  though  he  had  been  notified  that 
if  he  did  so  defendant  would  not  receive  him  that  day  as  a  pas- 
senger. As  soon  as  he  reached  Nashua,  plaintiff  applied  to  be  re- 
ceived into  defendant's  coach,  and  tendered  the  fare  to  Amherst. 
There  was  room  in  the  conveyance,  but  defendant  refused  to  receive 
him.  The  parties  agreed  that  judgment  should  be  rendered  for  the 
plaintiff,  for  nominal  damages,  or  for  the  defendant,  according  to  the 
opinion  of  the  court  upon  the  facts. 

Parker.  C.  J.^  It  is  well  settled  that,  so  long  as  a  common  car- 
rier has  convenient  room,  he  is  bound  to  receive  and  carry  all  goods 
which  are  offered  for  transportation,  of  the  sort  he  is  accustomed  to 
carry,  if  they  are  brought  at  a  reasonable  time,  and  in  a  suitable  con- 
dition. Story  on  Bailments,  328;  Riley  v.  Home,  5  Bing.  217,  15 
Eng.  C.  L.  R.  426.    *     *     * 

And  we  are  of  opinion  that  the  proprietors  of  a  stagecoach,  for  the 
regular  transportation  of  passengers,   for  hire,  from  place  to  place, 

1  The  statemeut  of  facts  has  been  rewritten,  and  part  of  the  opinion  omit- 
ted. 

(525) 


526  THE   COMMON    CARRIER'S    DL'TY    TO   SERVE.  (Part  5 

are,  as  in  the  case  of  common  carriers  of  goods,  bound  to  take  all 
passengers  who  come,  so  long  as  they  have  convenient  accommoda- 
tion for  their  safe  carriage,  unless  there  is  a  sufficient  excuse  for  a 
refusal.  Jencks  v.  Coleman,  2  Sumn.  221,  Fed.  Cas.  No.  7,258 ;  Hol- 
lister  V.  Novvlen,  19  Wend.  (N.  Y.)  239,  32  Am.  Dec.  455. 

The  principle  which  requires  common  carriers  of  goods  to  take  all 
that  are  offered,  under  the  limitations  before  suggested,  seems  well 
to  apply. 

Like  innkeepers,  carriers  of  passengers  are  not  bound  to  receive 
all  comers.  ^larkham  v.  Brown,  8  N.  H.  523,  31  Am.  Dec.  209.  The 
character  of  the  applicant,  or  his  condition  at  the  time,  may  furnish 
just  grounds  for  his  exclusion.  And  his  object  at  the  time  may  fur- 
nish a  sufficient  excuse  for  a  refusal;  as,  if  it  be  to  commit  an  as- 
sault upon  another  passenger,  or  to  injure  the  business  of  the  pro- 
prietors. 

The  case  shows  the  defendant  to  have  been  a  general  carrier  of 
passengers,  for  hire,  in  his  stagecoach,  from  Nashua  to  Amherst,  at 
the  time  of  the  plaintiff's  application.  It  is  admitted  there  was  room 
in  the  coach ;  and  there  is  no  evidence  that  he  was  an  improper  per- 
son to  be  admitted,  or  that  he  came  within  any  of  the  reasons  of  ex- 
clusion before  suggested. 

It  has  been  contended  that  the  defendant  was  only  a  special  car- 
rier of  passengers,  and  did  not  hold  himself  out  as  a  carrier  of  per- 
sons generally;  but  the  facts  do  not  seem  to  show  a  holding  out  for 
special  employment.  He  was  one  of  the  proprietors,  and  the  driver, 
of  a  line  of  stages  from  Nashua  to  Amherst  and  Francestown.  They 
held  themselves  out  as  general  passenger  carriers  between  those  places. 
But,  by  reason  of  their  connection  with  French's  line  of  stages  from 
Lowell  to  Nashua,  they  attempted  to  make  an  exception  of  persons 
who  came  from  Lowell  to  Nashua,  in  Tuttle's  stage,  on  the  same  day 
in  which  they  applied  for  a  passage  for  the  north.  It  is  an  attempt 
to  limit  their  responsibility  in  a  particular  case,  or  class  of  cases,  on 
account  of  their  agreement  with  French. 

It  is  further  contended  that  the  defendant  and  other  proprietors 
had  a  right  to  make  rules  for  the  regulation  of  their  business,  and 
among  them  a  rule  that  passengers  from  Lowell  to  Amherst  and  on- 
ward should  take  French's  stage  at  Lowell,  and  that  by  a  notice 
brought  home  to  the  individual  the  general  responsibility  of  the  de- 
fendant, if  it  existed,  is  limited. 

But  we  are  of  opinion  that  the  proprietors  had  no  right  to  limit 
their  general  responsibility  in  this  manner. 

It  has  been  decided,  in  New  York,  that  stagecoach  proprietors  are 
answerable,  as  common  carriers,  for  the  baggage  of  passengers ;  that 
they  cannot  restrict  their  common-law  liability  by  a  general  notice 
that  the  baggage  of  passengers  is  at  the  risk  of  the  owners ;  and  that 
if  a  carrier  can  restrict  his  common-law  liability  it  can  only  be  by  an 
express  contract.     Hollister  v.  Nowlen  [ante,  p.  395].     And  this  prin- 


Ch.  1)  EXTENT   OF   OBLIGATION   TO    SERVE.  527 

ciple  was  applied,  and  the  proprietors  held  liable  for  the  loss  of  a  trunk, 
in  a  case  where  the  passenger  stopped  at  a  place  where  the  stages  were 
not  changed,  and  he  permitted  the  stage  to  proceed,  without  any  inquiry 
for  his  baggage.  Cole  v.  Goodwin,  19  Wend.  (N.  Y.)  251,  32  Am.  Dec. 
470.  However  this  may  be,  as  there  was  room  in  the  defendant's  coach, 
he  could  not  have  objected  to  take  a  passenger  from  Nashua,  who  ap- 
plied there,  merely  because  he  belonged  to  some  other  town.  That 
would  furnish  no  sufficient  reason,  and  no  rule  or  notice  to  that  effect 
could  limit  his  duty.  And  there  is  as  little  legal  legal  reason  to  justify 
a  refusal  to  take  a  passenger  from  Nashua,  merely  because  he  came  to 
that  place  in  a  particular  conveyance. 

The  defendant  might  well  have  desired  that  passengers  at  Lowell 
should  take  French's  line,  because  it  connected  with  his.  But  if  he 
had  himself  been  the  proprietor  of  the  stages  from  Lowell  to  Nashua, 
he  could- have  had  no  right  to  refuse  to  take  a  passenger  from  Nashua, 
merely  because  he  did  not  see  fit  to  come  to  that  place  in  his  stage. 
It  was  not  for  him  to  inquire  whether  the  plaintiff  came  to  Nashua 
from  one  town  or  another,  or  by  one  conveyance  or  another.  That 
the  plaintiff  proposed  to  travel  onward  from  that  place  could  not  in- 
juriously affect  the  defendant's  business ;  nor  was  the  plaintiff  to  be 
punished,  because  he  had  come  to  Nashua  in  a  particular  manner. 

The  defendant  had  good  right,  by  an  agreement  with  French,  to 
give  a  preference  to  the  passengers  who  came  in  French's  stage ;  and 
as  they  were  carriers  of  the  mail  on  the  same  route,  it  seems  he  was 
bound  so  to  do  without  an  agreement.  If,  after  they  were  accom- 
modated, there  was  still  room,  he  was  bound  to  carry  the  plaintiff, 
without  inquiring  in  what  line  he  came  to  Nashua. 

Judgment  for  the  plaintiff'.^ 

2  See.  also,  Jackson  v.  Rogers,  ante.  p.  16:  Holt,  C.  J.,  in  Lane  v.  Cotton, 
ante.  p.  IG ;  Doty  v.  Strong,  1  Pin.  (Wis.)  313.  40  Am.  Dee.  773  (IS-t^).  as- 
snmpsit  lies  for  refusal  of  goods  tendered :  Chicago,  etc.,  R.  Co.  v.  WoUcott. 
141  Ind.  2G7.  39  N.  E.  451.  50  Am.  St.  Rep.  320  (1895).  railroad  company,  which 
holds  itself  out  to  do  so,  is  bound  to  furnish  through  ears  for  carriage  to 
points  beyond  its  line:  Crouch  v.  London  &  X.  W.  Ry.  Co..  14  C.  B.  2.55  (1854). 
must  carry,  though  destination  is  beyond  the  realm ;  Tunnel  v.  Pettijohn.  2 
Har.  (Del.)  48  (lS3i;).  truckman  carrying  light  goods  not  bound  to  take  hogs- 
head of  molasses;  Rutherford  v.  Gd.  Tk.  Ry.  (Can.)  5  La.  Rev.  Leg.  483 
(187.3).  railroad  carrying  lumber  may  excejit  cedar :  Little  Rock.  etc..  R.  Co. 
v.  Conatser,  61  Ark.'sGO,  33  S.  W.  1057  (1896).  railroad,  though  lacking  facili- 
ties to  carry,  not  liable  unless  goods  are  tenderetl ;  Central,  etc..  R.  Co.  v. 
Morris,  68  Tex.  49,  3  S.  W.  457  (1887),  carrier  liable  where  its  statement  that 
it  would  not  carry  caused  plaintiff  to  desi-st  from  selling  his  goods  for  ship- 
ment:  \Yilder  v.' St.  Johnsbury,  etc.,  R.  Co..  m  Vt.  mc.  30  Atl.  41  (1891), 
where  carrier,  without  reference  to  any  specific  intended  shipment,  told  ship- 
per it  would  carry  for  him  no  longer,  and  shipper  in  consequence  made  no 
tender  of  goods  he  would  otherwise  have  shipped,  carrier  not  liable  for  breach 
of  duty  to  receive. 

"The  defendant  constructed  its  railway  and  equipped  it.  Plaintiff  then 
opened  his  coal  mine,  and  constructed  his  sidings,  chutes,  and  tipples  with  a 
view  to  shipment  on  this  road  and  no  other.  Defendant  up  to  November  19, 
1902,  furnished  him  with  cars.  Then  it  peremptorily  refused  to  perform  its 
duty  to  him  unless  he  sold  his  coal  to  another  coal  company  at  a  price  much 


528  THE   COMMON   CARRIER'3   DUTY   TO   SERVE.  (Part    5 


EXPRESS  CASES. 

{Supreme  Court  of  the  United  States.  1S8(>.    117  U.  S.  1,  G  Sup.  Ct.  542,  29  L. 

Ed.  TUl.) 

Waite,  C.  J.^  These  suits  present  substantially  the  same  ques- 
tions and  may  properly  be  considered  together.  They  were  each 
brought  by  an  express  company  against  a  railway  company  to  re- 
strain the  railway  company  from  interfering  with  or  disturbing  in 
any  manner  the  facilities  theretofore  afforded  the  express  company 
for  doing  its  business  on  the  railway  of  the  railway  company.  *  *  * 
The  evidence  shows  that  the  express  business  was  first  organized  in 
the  United  States  about  the  year  1839.     *     *     * 

When  the  business  began  railroads  were  in  their  infancy.  They 
were  few  in  number,  and  for  comparatively  short  distances.  There 
has  never  been  a  time,  however,  since  the  express  business  was  started 
that  it  has  not  been  encouraged  by  the  railroad  companies,  and  it  is 
no  doubt  true,  as  alleged  in  each  of  the  bills  filed  in  these  cases,  that 
"no  railroad  company  in  the  United  States  *  *  *  ^^s  ever  refused 
to  transport  express  matter  for  the  public,  upon  the  application  of 
some  express  company  of  some  form  of  legal  constitution.  Every 
railway  company  *  *  *  has  recognized  the  right  of  the  public  to 
demand  transportation  by  the  railway  facilities  which  the  public  has 
permitted  to  be  created,  of  that  class  of  matter  which  is  known  as  ex- 
press matter."  Express  companies  have  undoubtedly  invested  their 
capital  and  built  up  their  business  in  the  hope  and  expectation  of 
securing  and  keeping  for  themselves  such  railway  facilities  as  they 


below  what  it  was  worth ;  this  latter  company  being  controlled  by  the  presi- 
dent of  the  railroad  company.  If  this  was  not  a  wrong  special  to  plaintiff, 
as  distinguished  from  the  public,  we  are  at  a  loss  to  conceive  what  would  con- 
stitute such  a  wrong.  It  is  not  a  refusal  to  supply  cars  and  motive  power 
on  the  road,  or  to  keep  the  road  in  repair.  *  *  *  -we  are  of  opinion  that 
on  the  particular  facts  of  this  case,  not  disputed  by  defendant,  plaintiff's  in- 
jury was  different  in  kind  and  special  to  himself,  and  that  therefore  he  could 
properly  seek  the  remetly  by  mandamus."  Dean,  J.,  in  Loraiue  v.  Pittsburg, 
etc.,  R.  Co.,  20.0  Pa.  132,  5-1  Atl.  .580.  Gl  L.  R.  A.  502  (l!)0.3). 

"While  no  one  can  be  compelled  to  engage  in  the  business  of  a  common  car- 
rier, yet  when  he  does  so  certain  duties  are  imposed,  which  can  be  enforced 
by  mandamus  or  other  suitable  remedy.  The  Missouri  Pacific  engaged  in  the 
business  of  transferring  cars  from  the  Santa  Fe  track  to  industries  located 
at  Stafford,  and  continued  to  do  so  for  all  parties  except  the  mill  company. 
So  long  as  it  engaged  in  such  transfer,  it  was  bound  to  treat  all  industries  at 
Stafford  alike,  and  could  not  refuse  to  do  for  one  that  which  it  was  doing 
for  others.  No  legislative  enactment,  no  special  mandate  from  any  commis- 
sion or  other  administrative  board,  was  necessary ;  for  the  duty  arose  from 
the  fact  that  it  was  a  common  carrier.  This  lies  at  the  foundation  of  the  law 
of  common  carriers.  Whenever  one  engages  in  that  business,  the  obligation 
of  equal  service  to  all  arises ;  and  that  obligation,  irrespective  of  legislative 
action  or  special  mandate,  can  be  enforced  bv  the  courts.  Brewer,  J.,  in  Mo. 
Pac.  Ry.  V.  Larabee  Mills,  211  U.  S.  G12,  29  Sup.  Ct.  214.  .53  L.  Ed.  352  (1909). 

3  Parts  of  the  opinion  are  omitted.  Miller,  J.,  delivered  a  dissenting  opin- 
ion, with  which  Field,  J.,  agreed. 


Ch.  1)  KXTENT   OF   OBLIGATION   TO    SERVE.  529 

needed,  and  railroad  companies  have  likewise  relied  upon  the  express 
business  as  one  of  their  important  sources  of  income. 

But  it  is  neither  averred  in  the  bills,  nor  shown  by  the  testimony, 
that  any  railroad  company  in  the  United  States  has  ever  held  itself 
out  as  a  common  carrier  of  express  companies,  that  is  to  say,  as  a 
common  carrier  of  common  carriers.  On  the  contrary  it  has  been 
shown,  and  in  fact  it  was  conceded  upon  the  argument,  that,  down  to 
the  time  of  bringing-  these  suits,  no  railroad  company  had  taken  an 
express  company  on  its  road  for  business  except  under  some  special 
contract,  verbal  or  written,  and  generally  written,  in  which  the  rights 
and  the  duties  of  the  respective  parties  were  carefully  fixed  and  de- 
fined.    *     *     * 

The  reason  is  obvious  why  special  contracts  in  reference  to  this 
business  are  necessary.  The  transportation  required  is  of  a  kind 
which  must,  if  possible,  be  had  for  the  most  part  on  passenger  trains. 
It  requires  not  only  speed,  but  reasonable  certainty  as  to  the  c[uantity 
that  will  be  carried  at  any  one  time.  As  the  things  carried  are  to  be* 
kept  in  the  personal  custody  of  the  messenger  or  other  employe  of  the 
express  company,  it  is  important  that  a  certain  amount  of  car  space 
should  be  specially  set  apart  for  the  business,  and  that  this  should,  as 
far  as  practicable,  be  put  in  the  exclusive  possession  of  the  express- 
man in  charge.  As  the  business  to  be  done  is  "express,"  it  implies 
access  to  the  train  for  loading  at  the  latest,  and  for  unloading  at  the 
earliest,  convenient  moment.  All  this  is  entirely  inconsistent  with  the 
idea  of  an  express  business  on  passenger  trains  free  to  all  express 
carriers.  Railroad  companies  are  by  law  carriers  of  both  persons  and 
property.  Passenger  trains  have  from  the  beginning  been  provided 
for  the  transportation  primarily  of  passengers  and  their  baggage. 
This  must  be  done  with  reasonable  promptness  and  with  reasonable 
comfort  to  the  passenger. 

The  express  business  on  passenger  trains  js  in  a  degree  subordinate 
to  the  passenger  business,  and  it  is  consequently  the  duty  of  a  railroad 
company  in  arranging  for  the  express  to  see  that  there  is  as  little  in- 
terference as  possible  with  the  wants  of  passengers.  This  implies 
a  special  understanding  and  agreement  as  to  the  amount  of  car  space 
that  will  be  afforded,  and  the  conditions  on  which  it  is  to  be  occupied, 
the  particular  trains  that  can  be  used,  the  places  at  which  they  shall 
stop,  the  price  to  be  paid,  and  all  the  varying  details  of  a  business 
which  is  to  be  adjusted  between  two  public  servants,  so  that  each  can 
perform  in  the  best  manner  its  own  particular  duties.  All  this  must 
necessarily  be  a  matter  of  bargain,  and  it  by  no  means  follows  that, 
because  a  railroad  company  can  serve  one  express  company  in  one 
way,  it  can  as  well  serve  another  company  in  the  same  way,  and  still 
perform  its  other  obligations  to  the  public  in  a  satisfactory  manner. 
The  car  space  that  can  be  given  to  the  express  business  on  a  passenger 
train  is,  to  a  certain  extent,  limited,  and,  as  has  been  seen,  that  which 
Green  Cake. — 34 


530  THE  COMMON    CARRIER'S    DL'TY    TO   SERVE.  (Part  5 

is  allotted  to  a  particular  carrier  must  be,  in  a  measure,  under  his  ex- 
clusive control. 

No  express  company  can  do  a  successful  business  unless  it  is  at  all 
times  reasonably  sure  of  the  means  it  requires  for  transportation. 
On  important  lines  one  company  will  at  times  fill  all  the  space  the 
railroad  company  can  well  allow  for  the  business.  If  this  space  had 
to  be  divided  among  several  companies,  there  might  be  occasions  when 
the  public  would  be  put  to  inconvenience  by  delays  which  could  other- 
wise be  avoided.  So  long  as  the  public  are  served  to  their  reasonable 
satisfaction,  it  is  a  matter  of  no  importance  who  serves  them.  The 
railroad  company  performs  its  whole  duty  to  the  public  at  large  and 
to  each  individual  when  it  affords  the  public  all  reasonable  express 
accommodations.  If  this  is  done  the  railroad  company  owes  no  duty 
to  the  public  as  to  the  particular  agencies  it  shall  select  for  that  pur- 
pose. The  public  require  the  carriage,  but  the  company  may  choose 
its  own  appropriate  means  of  carriage,  always  provided  they  are  such 
as  to  insure  reasonable  promptness  and  security. 

The  inconvenience  that  would  come  from  allowing  more  than  one 
express  company  on  a  railroad  at  the  same  time  was  apparently  so 
well  understood  both  by  the  express  companies  and  the  railroad  com- 
panies that  the  three  principal  express  companies,  the  Adams,  the 
American,  and  the  United  States,  almost  immediately  on  their  organ- 
ization, now  more  than  thirty  years  ago,  by  agreement  divided  the 
territory  in  the  United  States  traversed  by  railroads  among  them- 
selves, and  since  that  time  each  has  confined  its  own  operations  to  the 
particular  roads  which,  under  this  division,  have  been  set  apart  for  its 
special  use.  No  one  of  these  companies  has  ever  interfered  with  the 
other,  and  each  has  worked  its  allotted  territory,  always  extending  its 
lines  in  the  agreed  directions  as  circumstances  would  permit.     *     *     * 

The  territory  traversed  by  the  railroads  involved  in  the  present  suits 
is  part  of  that  allotted  in  the  division  between  the  express  companies 
to  the  Adams  and  Southern  Companies,  and  in  due  time  after  the 
roads  were  built  these  companies  contracted  with  the  railroad  compa- 
nies for  the  privileges  of  an  express  business.  The  contracts  were  all 
in  writing,  in  which  the  rights  of  the  respective  parties  were  clearly 
defined,  and  there  is  now  no  dispute  about  what  they  were.  Each  con- 
tract contained  a  provision  for  its  termination  by  either  party  on  no- 
tice. That  notice  has  been  given  in  all  the  cases  by  the  railroad  com- 
panies, and  the  express  companies  now  sue  for  relief.  Clearly  this 
cannot  be  afforded  by  keeping  the  contracts  in  force,  for  both  parties 
have  agreed  that  they  may  be  terminated  at  any  time  by  either  party 
on  notice;  nor  by  making  new  contracts,  because  that  is  not  within  the 
scope  of  judicial  power. 

The  exact  question,  then,  is  whether  these  express  companies  can 
now  demand  as  a  right  what  they  have  heretofore  had  only  as  by  per- 
mission. That  depends,  as  is  conceded,  on  whether  all  railroad  compa- 
nies are  now  by  law  charged  with  the  duty  of  carrying  all  express  com- 


Ch.  1)  EXTENT   OF  OBLIGATION    TO    SERVE.  531 

panics  in  the  way  that  express  carriers  when  taken  are  usually  carried, 
just  as  they  are  with  the  duty  of  carrying  all  passengers  and  freights 
when  offered  in  the  way  that  passengers  and  freight  are  carried.  The 
contracts  which  these  companies  once  had  are  now  out  of  the  way, 
and  the  companies  at  this  time  possess  no  other  rights  than  such  as 
belong  to  any  other  company  or  person  wishing  to  do  an  express  busi- 
ness upon  these  roads.  If  they  are  entitled  to  the  relief  they  ask  it  is 
because  it  is  the  duty  of  the  railroad  companies  to  furnish  express 
facilities  to  all  alike  who  demand  them. 

The  Constitutions  and  the  laws  of  the  states  in  which  the  roads  are 
situated  place  the  companies  that  own  and  operate  them  on  the  foot- 
ing of  common  carriers,  but  there  is  nothing  which  in  positive  terms 
requires  a  railroad  company  to  carry  all  express  companies  in  the  way 
that  under  some  circumstances  they  may  be  able  without  inconvenience 
to  carry  one  company.  In  Kansas,  the  Missouri,  Kansas  &  Texas 
Company  must  furnish  sufificient  accommodations  for  the  transporta- 
tion of  all  such  express  freight  as  may  be  offered,  and  in  each  of  the 
states  of  Missouri,  Arkansas,  and  Kansas  railroad  companies  are  prob- 
ably prohibited  from  making  unreasonable  discriminations  in  their 
business  as  carriers,  but  this  is  all. 

Such  being  the  case,  the  right  of  the  express  companies  to  a  decree 
depends  upon  their  showing  the  existence  of  a  usage,  having  the  force 
of  law  in  the  express  business,  which  requires  railroad  companies  to 
carry  all  express  companies  on  their  passenger  trains  as  express  carri- 
ers are  usually  carried.  It  is  not  enough  to  establish  a  usage  to  carry 
some  express  company,  or  to  furnish  the  public  in  some  way  with  the 
advantages  of  an  express  business  over  the  road.  The  question  is  not 
whether  these  railroad  companies  must  furnish  the  general  public  with 
reasonable  express  facilities,  but  whether  they  must  carry  these  par- 
ticular express  carriers  for  the  purpose  of  enabling  them  to  do  an  ex- 
press business  over  the  lines. 

In  all  these  voluminous  records  there  is  not  a  syllable  of  evidence  to 
show  a  usage  for  the  carriage  of  express  companies  on  the  passenger 
trains  of  railroads  unless  specially  contracted  for.  While  it  has  uni- 
formly been  the  habit  of  railroad  companies  to  arrange,  at  the  earliest 
practicable  moment,  to  take  one  express  company  on  some  or  all  of 
their  passenger  trains,  or  to  provide  some  other  way  of  doing  an  ex- 
press business  on  their  lines,  it  has  never  been  the  practice  to  grant 
such  a  privilege  to  more  than  one  company  at  the  same  time,  unless  a 
statute  or  some  special  circumstances  made  it  necessary  or  desirable. 

The  express  companies  that  bring  these  suits  are  certainly  in  no  situ- 
ation to  claim  a  usage  in  their  favor  on  these  particular  roads,  because 
their  entry  was  originally  under  special  contracts,  and  no  other  compa- 
nies have  ever  been  admitted  except  by  agreement.  By  the  terms  of 
their  contracts  they  agreed  that  all  their  contract  rights  on  the  roads 
should  be  terminated  at  the  will  of  the  railroad  company.  They  were 
willing  to  begin  and  to  expand  their  business  upon  this  understanding. 


o32  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  .  (Part  5 

and  with  this  uncertainty  as  to  the  duration  of  their  privileges.  The 
stoppage  of  their  faciUties  was  one  of  the  risks  they  assumed  when 
they  accepted  their  contracts,  and  made  their  investments  under  them. 
If  the  general  public  were  complaining  because  the  railroad  companies 
refused  to  carry  express  matter  themselves  on  their  passenger  trains, 
or  to  allow  it  to  be  carried  by  others,  different  questions  would  be 
presented.  As  it  is,  we  have  only  to  decide  whether  these  particular 
express  companies  must  be  carried  notwithstanding  the  termination  of 
their  special  contract  rights. 

The  difficulty  in  the  cases  is  apparent  from  the  form  of  the  decrees. 
As  express  companies  had  always  been  carried  by  railroad  companies 
under  special  contracts,  which  established  the  duty  of  the  railroad  com- 
pany upon  the  one  side,  and  fixed  the  liability  of  the  express  company 
on  the  other,  the  court,  in  decreeing  the  carriage  was  substantially 
compelled  to  make  for  the  parties  such  a  contract  for  the  business  as 
in  its  opinion  they  ought  to  have  made  for  themselves.     *     *     * 

The  regulation  of  matters  of  this  kind  is  legislative  in  its  character, 
not  judicial.  To  what  extent  it  must  come,  if  it  comes  at  all,  from 
Congress,  and  to  what  extent  it  may  come  from  the  states,  are  ques- 
tions we  do  not  now  undertake  to  decide ;  but  that  it  must  come,  when 
it  does  come,  from  some  source  of  legislative  power,  we  do  not  doubt. 
The  Legislature  may  impose  a  duty,  and  when  imposed  it  will,  if  nec- 
essary, be  enforced  by  the  courts,  but,  unless  a  duty  has  been  created 
either  by  usage  or  by  contract,  or  by  statute,  the  courts  cannot  be  called 
on  to  give  it  effect. 

The  decree  in  each  of  the  cases  is  reversed,  and  the  suit  is  remanded, 
with  directions  to  dissolve  the  injunction,  and,  after  adjusting  the  ac- 
counts between  the  parties  for  business  done  while  the  injunctions 
were  in  force,  and  decreeing  the  payment  of  any  amounts  that  may  be 
found  to  be  due,  to  dismiss  the  bills.'* 

4  Ace.  Sargeut  v.  Boston  &  L.  R.  Co.,  115  Mass.  41G  (1874) ;  Pfister  v.  Cen- 
tral Pac.  R.  Co.,  70  Cal.  109.  11  Pac.  686.  5!>  Am.  Rep.  404  (1886):  Atlantic 
Ex.  Co.  V.  Wilmington  &  W.  R.  Co.,  Ill  N.  C.  463,  16  S.  E.  393.  18  L.  R.  A. 
393.  32  Am.  St.  Rep.  80.">  (1892).  And  see  No.  Pac.  Ry.  Co.  v.  Adams,  ante,  p. 
4.")1,  and  cases  cited  in  note  thereto. 

Contra:  Sandford  v.  Railroad  Co.,  24  Pa.  387,  64  Am.  Dec.  667  (185.5) ;  New 
Eng.  Ex.  Co.  V.  Maine  Cent.  R.  Co.,  57  Me.  188,  2  Am.  Rep.  31  (1869);  Mc- 
Duffee  V.  P.  &  R.  Co.,  52  N.  H.  430,  13  Am.  Rep.  72  (1873).  And  see  17  Green 
Bag,  570. 

In  Chicago,  etc.,  R.  Co.  v.  Pullman  Car  Co.,  139  U.  S.  79,  11  Sup.  Ct.  490, 
35  L.  Ed.  97  (1891)  a  question  arose  as  to  the  validity  of  a  contract  giving  the 
Pullman  Company  an  exclusive  right  to  run  sleeping  cars  over  the  railroad. 
Harlan,  J.,  said:  "The  defendant  was  under  a  duty,  arising  from  the  public 
nature  of  its  employment,  to  furnish  for  the  use  of  passengers  on  its  lines 
such  accommodations  as  were  reasonably  required  by  the  existing  conditions 
of  passenger  traffic.  Its  duty,  as  a  carrier  of  passengers,  was  to  make  suita- 
ble provisions  for  their  comfort  and  safety.  Instead  of  furnishing  its  own 
drawing  room  and  sleeping  cars,  as  it  might  have  done,  it  employed  the  plain- 
tiff, whose  special  business  was  to  provide  cars  of  that  character,  to  supply 
as  many  as  were  necessary  to  meet  the  requirements  of  travel.  It  thus  used 
the  instrumentality  of  another  corporation  in  order  that  it  might  properly  dis- 
charge its  duty  to  the  public.     So  long  as  the  defendant's  lines  were  supplied 


Ch.  1)  EXTENT   OF   OBLIGATION   TO    SERVE.  533 


STATE  V.  REED. 

(Supreme  Court  of  Mississippi,  1898.    76  Miss.  211,  24  South.  308,  43  L.  R.  A. 
134,   71  Am.   St.   Rep.   528.) 

Woods,  C.  J.^  Joseph  Reed,  the  appellee,  was  arrested  upon  affi- 
davit charging  him  with  trespassing  upon  private  premises  belonging 
to  the  Alabama  &  Vicksburg  Railway  Company,  and  was,  before  the 
justice  of  the  peace,  tried  and  convicted.  He  appealed  from  that  con- 
viction to  the  circuit  court  of  Warren  county,  and  was  there  tried  upon 
an  agreed  statement  of  facts,  and  was  by  the  judgment  of  that  court 
acquitted  of  the  charge  and  discharged.  From  this  judgment  of  the 
circuit  court,  the  state  prosecutes  this  appeal.     *     *     * 

The  agreed  statement  of  facts  distinctly  states  the  question  to  be 
decided  by  us,  and  to  that  we  must  confine  ourselves.  *  *  *  The 
single  issue  is  thus  sharply  defined,  viz. :  Has  a  railroad  the  right  to 
confer  upon  one  hackman  the  exclusive  privilege  of  entering  with  his 
hacks  its  inclosed  station-house  grounds,  and  of  soliciting  incoming 
passengers,  and  to  exclude  all  others  from  the  inclosure,  such  privi- 
lege conferring  advantages  upon  the  favored  hackman,  and  discrim- 
inating against  all  other  hackmen  by  forbidding  them  to  enter  the 
inclosure  to  solicit  passengers,  and  by  placing  the  hacks  of  those  ex- 
cluded 150  feet  from  the  depot,  and  in  an  open  street? 

The  question  has  never  before  been  presented  in  our  courts,  but  it  is 
by  no  means  a  new  one,  and  has  been  passed  upon  in  other  jurisdic- 
tions. Quite  independently  of  constitutional  or  statutory  provisions, 
it  seems  to  be  the  prevailing  doctrine  in  the  United  States  that  a  rail- 
road company  may  make  any  necessary  and  reasonable  rules  for  the 
government  of  persons  using  its  depots  and  grounds,  yet  it  cannot 
arbitrarily,  for  its  own  pleasure  or  profit,  admit  to  its  platforms  or 
depot  grounds  one  carrier  of  passengers  or  merchandise,  and  at  the 
same  time  exclude  all  others.  The  question  is  one  that  affects  not  only 
the  excluded  hackmen ;  it  affects  the  interests  of  the  public.  The  up- 
holding of  the  grant  of  this  exclusive  privilege  would  prevent  competi- 
tion between  rival  carriers  of  passengers,  create  a  monopoly  in  the 
privileged  hackmen,  and  might  produce  inconvenience  and  loss  to  per- 
sons traveling  over  the  railroad,  or  those  having  freights  transported 
over  it,  in  cases  of  exclusion  of  drays  and  wagons  from  its  grounds, 
other  than  those  owned  by  the  person  having  the  exclusive  right  to 
enter  the  railroad's  depot  grounds.  To  concede  the  right  claimed  by 
the  railroad  in  the  present  case  would  be,  in  effect,  to  confer  upon  the 
railroad  company  the  control  of  the  "transportation  of  passengers  be- 

with  the  requisite  number  of  drawing  room  and  sleeping  cars,  it  was  a  mat- 
ter of  indifference  to  the  public  who  owned  them." 

See.  also,  Del..  L.  &  W.  R.  R.  v.  Kutter,  147  Fed.  51,  77  C,  C.  A.  315  (1906), 
contract  for  exclusive  right  to  carry  milk, 

6  Parts  of  the  opinion  are  omitted. 


534  THE  COMMON    CARRIER'S    DUTY   TO  SERVE.  (Part  5 

yond  its  own  lines,  and  in  the  end  to  create  a  monopoly  of  such  busi- 
ness, not  granted  by  its  charter,  and  against  the  interests  of  the  pub- 
lic.    *     *     * 

We  are  of  opinion  that  the  railroad  had  no  right  to  exclude  Reed, 
the  appellee,  from  its  depot  and  inclosed  grounds,  on  the  facts  ap- 
pearing in  the  agreed  statement  on  which  the  case  is  submitted  to  us, 
and  hence  that  the  action  of  the  court  below  in  discharging  Joseph 
Reed  was  correct.^ 


ILLINOIS  CENT.  R.  CO.  v.  ALLEN.      . 

(Court  of  Appeals  of  Kentucky,  190.j.  121  Ky.  138,  89  S.  W.  I.jO.) 
Barker,  J.t  *  *  *  "Wg  ^^,ju  consider,  first,  the  duty  of  com- 
mon carriers  of  passengers  in  regard  to  persons  applying  for  trans- 
portation who  are,  or  appear  to  be,  unable  to  care  for  themselves. 
May  a  lunatic  have  a  ticket  thrust  into  his  hand,  and  be  delivered  to 
the  employes  of  a  railroad  corporation  to  be  transported  to  his  destina- 

6  Ace.  Montana  Union  Rv.  Co.  v.  Langlois,  9  Mont.  419.  24  Pac.  209.  8  L.  R. 
A.  75.3.  18  Am.  St.  Rep.  74.j  (1890) ;  Cravens  v.  Rodgers,  101  Mo.  247,  14  S. 
W.  100  (1890) :  Kalamazoo,  etc.,  Co.  v.  Sootsma,  84  Mich.  194,  47  N.  W.  007, 
10  L.  R.  A.  819.  22  Am.  St.  Rep.  693  (1890)  ;  McConnell  v.  Pedigo.  92  Ky.  40."), 
18  S.  W.  15  (1892) ;  Indianapolis,  etc.,  Co.  v.  Dohn,  1.53  Ind.  10.  53  N.  E.  937, 
45  L.  R.  A.  427.  74  Am.  St.  Rep.  274  (1899).  And  see  Pa.  C<3.  v.  Chicago,  181 
111.  289,  54  N.  E.  82.5,  .53  L.  R.  A.  223  (1899),  right  to  stand  in  public  street 
outside  station;  Markham  v.  Brown.  8  N.  H.  523,  31  Am.  Dec.  209  (1837), 
entering  inn  to  solicit  custom  of  guests. 

Contra:  Old  Col.  R.  Co.  v.  Tripp,  147  Mass.  3.5,  17  N.  E.  89.  9  Am.  St.  Rep. 
661  (1888) ;  Boston  &  A.  R.  Co.  v.  Brown.  177  Mass.  65,  58  N.  E.  189.  52  L. 
R.  A.  418  (1900) ;  Brown  v.  N.  Y.  C.  R.  Co.,  75  Hun,  355,  27  N.  T.  Supp.  69 
(1894),  affirmed  151  N.  Y.  674,  46  N.  E.  1145  (1897)  ;  N.  Y.,  N.  H.  &  H.  R.  Co. 
V.  Scovill,  71  Conn.  136.  41  Atl.  246.  42  L.  R.  A.  1.57,  71  Am.  St.  Rep.  159 
(1898) :  Norfolk  &  W.  Ry.  Co.  v.  Old  Dom.  Baggage  Co..  99  Va.  111.  37  S.  E. 
784,  50  L.  R.  A.  722  (1901);  N.  Y..  N.  H.  &  H.  R.  Co.  v.  Bork,  23  R.  I.  218. 
49  Atl.  965  (1901)  ;  Hedding  v.  Gallagher,  72  N.  H.  377.  57  Atl.  22.5.  64  L.  R. 
A.  811  (1903) ;  Donovan  v.  Pa.  Co.,  199  U.  S.  279,  26  Sup.  Ct.  91,  50  L.  Ed. 
192  (1905) ;  State  v.  Union  Depot  Co.,  71  Ohio  St.  379.  73  N.  E.  633.  68  L.  R. 
A.  792  (190.5) ;  Oregon  Short  Line  v.  Davidson,  33  Utah,  370,  94  Pac.  10,  16 
L.  R.  A.  (N.  S.)  777  (1908) ;  Union  Depot  Co.  v.  INIeeking  (Colo.)  94  Pac.  16 
(1908).  And  see  Kates  v.  Atlanta,  etc.,  Co.,  107  Ga.  636,  34  S.  E.  372.  46  D. 
R.  A.  431  (1899),  and  Godbout  v.  St.  Paul  Co.,  79  Minn.  188.  81  N.  W.  835.  47 
I>.  R.  A.  .5.32  (1900).  soliciting  within  station  huiUling ;  Perth  Station  v.  Ross, 
[18971  App.  Cas.  479,  railroad  maintaining  hotel  at  station  may  exclude  from 
station  solicitors  for  other  hotels ;  Telephone  Case.  3  Can.  Ry.  Cas.  205  (1904) ; 
17  Green  Bag.  575,  railroad  which  permits  one  telephone  company  to  have  a 
booth  at  its  station  is  not  hound  to  admit  a  rival  company  to  a  like  privilege ; 
Atlanta  Ter.  Co.  v.  Am.  Baggage,  etc.,  Co.,  125  Ga.  677,  54  S.  E.  711  (1906). 

Where  an  arriving  passenger  has  asked  a  hack  man  to  meet  and  take  him 
from  the  station,  his  request  is  authority  to  the  hackman  to  enter  the  station 
grounds,  though  against  the  railroad's  orders,  and  the  hackman  is  not  liable 
for  trespass.  Griswold  v.  Webb,  16  R.  I.  649,  19  Atl.  143,  7  L.  R.  A.  302 
(1889).     Contra:   Barker  v.  Midland  Ry.  Co.,  18  C.  B.  46  (I8.06). 

A  railroad  cannot  confer  a  monopoly  of  using  its  terminal  docks  upon  a 
single  line  of  steamers.  West  Coast  Naval  Stores  Co.  v.  L.  &  N.  R.  Co.,  121 
Fed.  645,  57  C.  C.  A.  671  (1903). 

1  Parts  of  the  opinion  are  omitted. 


Ch.  1)      .  EXTENT   OF   OBLIGATION   TO    SERVE.  535 

tion,  and  cared  for  by  them  on  the  journey?  May  one  known  to  be 
intoxicated  be  imposed  upon  the  employes  of  a  common  carrier  with- 
out an  attendant  to  care  for  him?  Or  may  an  old  blind  man  demand 
that  the  corporation  shall  receive  him  as  a  passenger  without  an  at- 
tendant, in  order  to  make  a  long  journey  involving  certainly  two,  and 
perhaps  three,  changes  of  cars?  The  answer  to  these  questions  is 
manifestly  fraught  with  important  consequences  to  carriers  of  pas- 
sengers for  hire.     *     *     * 

We  think  it  a  proposition  too  obvious  to  admit  of  refutation  that 
the  blind  man  who,  without  an  attendant,  successfully  makes  a  long 
railroad  journey  involving  several  changes  of  cars,  does  so  either  be- 
cause he  is  especially  cared  for  and  helped  on  his  way  by  the  kindness 
of  chance  acquaintances  or  by  the  aid  of  the  employes  of  the  carrier. 
Let  any  one  imagine  a  totally  blind  man  alighting  on  a  strange  plat- 
form for  the  purpose  of  changing  cars  amid  the  confusion  arising 
from  the  shifting  of  trains,  the  blowing  of  whistles,  the  clanging  of 
bells,  the  rolling  of  baggage  trucks,  and  the  hurried  tramp  of  the 
feet  of  his  fellow  passengers,  and  he  will  need  no  extraneous  evidence 
to  realize  that  the  afflicted  passenger  will  be  totally  helpless,  as  well 
as  in  the  most  imminent  danger  of  harm,  without  the  kindly  aid  of 
some  one  who  is  not  devoid  of  sight.  The  duty  of  the  carrier  of  pas- 
sengers for  hire  is  to  attend  to  the  comfort  and  safety  of  all  of  its 
passengers  alike,  but  not  to  furnish  especial  attention  to  any  one  in 
particular,  unless,  perhaps,  under  exceptional  circumstances,  such  as 
accidental  sickness  or  misfortune  en  route.  If  the  carrier  accepts  a 
helpless  passenger  without  an  attendant,  it  will  doubtless  assume  the 
additional  care  and  responsibility  commensurate  with  his  misfortune 
and  needs;  but  this  is  a  burden  it  must  assume  for  itself.  The  law 
does  not  impose  it  as  an  incident  to  the  business.'^ 

The  undisputed  facts  of  the  case  at  bar  are  that  the  appellee  was, 
as  already  said,  totally  blind  and  77  years  of  age.  He  desired  to  be 
transported  for  a  distance  of  from  140  to  185  miles  (depending  upon 
which  of  two  routes  he  took),  involving  two,  if  not  three,  changes  of 
the  vehicles  of  transportation;  one  of  the  changes  being  to  take  a 
steamboat  ride  of  20  miles  up  the  Ohio  river.  On  both  occasions  that 
he  came  to  the  appellant's  agent  in  regard  to  the  proposed  trip  he  was 
led  by  an  attendant,  and  under  these  circumstances  the  agent  firmly, 
but  politely,  refused  to  sell  him  a  ticket  unless  he  had  an  attendant. 
We  think  it  entirely  immaterial  that  appellee  was  in  the  habit  of  taking 
occasional  short  trips  on  appellant's  road  without  an  attendant.  These 
involved  no  change  of  cars,  and  furnish  no  evidence  of  his  ability  to 
take  the  trip  under  contemplation.  But  we  think  appellee's  own  evi- 
dence abundantly  shows  that  he  was  dependent  upon  the  assistance 
o'f  others  even  on  these  short  trips.     *     *     * 

We  do  not  think  it  important  that  the  appellant  had  promulgated  a 

8  But  see  Atchison,  etc.,  Ry.  Co.  v.  Parry,  ante,  p.  S2,  and  note  thereto. 


536  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

rule  upon  the  question  in  hand,  although,  if  it  were,  the  existence  of 
the  rule  was  established  without  contradiction.  The  rule  at  best  is 
only  for  the  guidance  of  the  employes.  The  corporation  could  not 
limit  its  duties  and  responsibilities  to  the  public  by  an  edict  to  its 
servants;  and,  unless  the  justifying  principle  of  law  be  underneath  it, 
the  rule  is  void.  The  right  of  the  company  to  protect  itself  from  the 
additional  hazard  of  transporting  a  blind  man  on  a  (considering  his 
infirmity)  to  him  perilous  journey  does  not  rest  on  a  rule  of  its  own, 
but  on  a  controlling  principle  of  law.  It  follows,  from  the  view  we 
have  taken  of  the  law  of  the  case,  that  a  peremptory  instruction  should 
have  been  awarded  appellant  at  the  conclusion  of  the  testimony,  and 
that  it  is  unnecessary  to  review  the  other  interesting  questions  raised 
by  appellant  on  the  record. 

Wherefore  the  judgment  is  reversed,  for  proceedings  consistent  with 
this  opinion.® 

9  See.  also.  Gray  v.  Wabasb  R.  Co.,  119  Mo.  App.  144,  95  S.  W.  983  (190G), 
need  not  receive  goods,  though  from  connecting  road,  if  impending  flood  threa- 
tens their  destruction ;  Phillips  v.  So.  Ry.  Co.,  124  N.  C.  123,  32  S.  E.  388, 
4.5  L.  R.  A.  163  (lSf»9).  need  not  admit  to  station  at  8  p.  m.  one  ^yho  intends 
to  take  train  leaving  at  1:30  a.  m. :  Piatt  v.  Lecocq.  158  Fetl.  723.  85  C.  C.  A. 
621.  15  T>.  R.  A.  (X.  S.)  558  (1907),  though  the  only  train  carrying  express 
matter  leaves  before  business  hours  in  the  morning,  an  express  company  is 
not  bound  to  receive  a  shipment  of  money  from  a  bank  on  the  preceding  aft- 
ernoon ;  Danciger  v.  Wells  Fargo  &  Co.',  154  Fed.  379  (1907).  not  bound  to 
take  goods  C.  O.  D..  though  accustomed  to  do  so.  Compare  I.  C.  R.  Co.  v. 
Smith,  85  Miss.  349.  37  South.  643.  70  L.  R.  A.  642,  107  Am.  St,  Rep.  293 
(1905).  railroad  must  receive  passenger,  though  blind,  if  it  should  know  he 
can  take  care  of  himself. 

It  has  been  held:  That  a  common  carrier  may  refuse  to  accept  as  passen- 
ger a  cursing  lunatic,  though  irresponsible  for  his  behavior  and  under  guard, 
Owens  V,  Macon,  etc.,  R.  Co..  119  Ga,  230.  40  S.  E,  87.  63  L.  R.  A.  946  (190.3): 
a  person  who.  being  drunk,  will,  it  is  reasonably  believed,  behave  offensively, 
Vinton  v.  Middlesex  R.  Co..  11  Allen  (Mass.)  304.  87  Am.  Dec.  714  (1865); 
Louisville  &  E.  R.  Co.  v.  McXall.v.  105  S.  W.  124.  31  Ky.  Law  Rep.  1357  (1907) ; 
or.  it  seems,  a  gambler  reasonably  believed  to  purpose  inlying  his  trade  on 
the  train.  Thurston  v.  Union  Pac."  R.  Co..  4  Dill.  321,  Fed.  Cas.  No.  14,019 
(1877) ;  that  it  may  not  refuse  to  accept  one  who  is  sober,  simply  because  he 
has  been  disorderly  on  the  cars  on  previous  occasions  when  drunk.  Story  v. 
N.  &  S.  R.  Co..  133  N,  C.  59,  45  S.  E,  349  (1903) :  that  it  may  refuse  a  woman 
whose  accustomed  behavior  on  the  cars  has  been  offensive  and  vulgar,  and 
who  will  not  pi-omise  to  behave  properly,  Stevenson  v.  West  Seattle,  etc.,  Co,, 
22  Wash,  84,  60  Pac,  51  (1900) ;  but  not,  because  of  her  imnioral  character,  a 
woman  whose  conduct  on  the  train  is  proper.  Brown  v,  M.  &  C.  R.  Co.  (C.  C.) 
7  Fed.  51  (1881).    And  see  cases  cited  in  note,  ante,  p.  81. 

It  seems  a  carrier  may  refuse  transportation  illegal  for  the  passenger, 
Pearson  v.  Duane.  4  Wall.  005.  18  L,  Ed,  447  (1866).  As  to  transportation  il- 
legal for  the  carrier,  see  Esposito  v,  Bowden,  ante,  p.  116. 

In  California  Powder  Works  v.  Atl.  &  Pac,  R.  Co.,  113  Cal.  329,  45  Pac. 
691,  36  L.  R.  A.  648  (1896),  an  agreement  exempting  a  common  carrier  from 
loss  without  fault  of  a  shipment  of  gunpowder  was  held  valid,  though  the 
carrier  offered  no  other  terms  of  carriage,  on  the  ground  that  it  was  not 
bound  to  carry  at  all.  The  court  said:  "A  common  carrier  is  not  bound  to 
receive  goods  which  are  so  defectively  packed  that  their  condition  will  entail 
upon  the  company  extra  care  and  extra  risk ;  nor  dangerous  articles,  as  ui- 
tro-glycerine,  dynamite,  gunpowder,  aqua  fortis,  oil  of  vitriol,  matches,  etc, 
*     *     *     It  was  thus  optional  with  the  defendant  to  accept  the  powder  for 


Ch.  1)  EXTENT   OF   OBLIGATION    TO    SERVK.  537 

BARNEY  V.  THE  D.  R.  MARTIN. 
(Circuit  Court,  E.  D.  New  York,  1873.     11  Blatchf.  233,  Fed.  Cas.  No.  1,030.) 

Hunt,  Circuit  Judge. ^"  On  the  trial  before  the  district  judge,  the 
Hbelant  recovered  the  sum  of  $1,000,  as  his  damages,  for  ejecting  him 
from  the  boat,  on  the  morning  of  October  23,  1871.  On  an  appHcation 
subsequently  made  to  him,  the  district  judge  reduced  the  recovery  to 
the  sum  of  $.500.  A  careful  perusal  of  all  the  testimony  satisfies  me 
that  the  libelant  was  pursuing  his  business  as  an  express  agent  on  board 
the  boat ;  that  he  persisted  in  it  against  the  remonstrance  of  the  claim- 
ants;   and  that  it  was  to  prevent  the  transaction  of  that  business  by 

him  on  board  the  boat,  that  he  was  ejected  therefrom  by  the  claimants. 
*     *     * 

The  suitable  carriage  of  persons  or  property  is  the  only  duty  of  the 
common  carrier.  A  steamboat  company  or  a  railroad  company  is  not 
bound  to  furnish  traveling  conveyances  for  those  who  wish  to  engage 
on  their  vehicles  in  the  business  of  selling  books,  papers,  or  articles 
of  food,  or  in  the  business  of  receiving  and  distributing  parcels  or  bag- 
gage, nor  to  permit  the  transaction  of  this  business  in  their  vehicles 
when  it  interferes  with  their  own  interests.  If  a  profit  may  arise  from 
such  business,  the  benefit  of  it  belongs  to  the  company,  and  they  are 
entitled  to  the  exclusive  use  of  their  cars  for  such  purposes.  This 
seems  to  be  clear  both  upon  principle  and  authority.     *     *     * 

The  incidental  benefit  arising  from  the  transaction  of  such  business 
as  may  be  done  on  board  a  boat  or  a  car  belongs  to  the  carrier,  and  he 
can  allow  the  privilege  to  one  and  exclude  it  from  another  at  his  pleas- 
ure. A  steamboat  company  or  a  railroad  company  may  well  allow  an 
individual  to  open  a  restaurant  or  a  bar  on  their  conveyance,  or  to 
do  the  business  of  boot  blacking,  or  of  peddling  books  and  papers. 
This  individual  is  under  their  control,  subject  to  their  regulations,  and 
the  business  interferes  in  no  respect  with  the  orderly  management  of 
the  vehicle.  But,  if  every  one  that  thinks  fit  can  enter  upon  the  per- 
formance of  these  duties,  the  control  of  the  vehicle  and  the  good  man- 
agement would  soon  be  at  end.     *     *     * 

The  libelant  in  this  case  refused  to  give  any  intimation  that  he 
would  abandon  his  trade  on  board  the  vessel.     The  steamboat  com- 

transportation  or  not ;  but.  if  it  cliose  to  accept  it,  it  could  do  so  upon  such 
terms,  and  with  such  limitation  of  its  common-law  liability,  as  it  saw  fit." 

See,  also,  Boyd  v.  Moses.  7  Wall.  3H>,  19  L.  Ed.  192  (1868),  carrier  not 
bound  under  coiitract  fo  carry  "lawful  merchandise"  to  receive  goods  in  such 
condition  that  they  will  damage  other  cargo ;  Nobel's  Explosives  Co.  v.  .Jen- 
kins, ante,  p.  IIG  note ;  Wilson  v.  Atl.  Coast  Line  (C.  C.)  120  Fed.  774  (1904), 
not  bound  to  carrv  uienatrerie  without  release  of  liability  ;  People  v.  Babcock. 
16  Hun  (N.  Y.)  313  (1878),  nor  fragile  glass  without  limitation  of  liability; 
Crescent  Liquor  Co.  v.  Piatt  (C.  C.)  148  Fed.  894  (1906),  express  company  must 
carry  intoxicating  liquor  C.  O.  D.,  if  it  so  carries  other  goods ;  Burke  v. 
Piatt  (C.  C.)  172  Fed.  777  (1909),  but  need  not  do  so,  if  such  carriage  is  pe- 
culiarly burdensome. 

10  Parts  of  the  opinion  are  omitted. 


538  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

pany,  it  is  evident,  were  quite  willing  to  carry  him  and  his  baggage, 
and  objected  only  to  his  persistent  attempts  to  continue  his  traffic  on 
their  boat.  He  insisted  that  he  had  the  right  to  pursue  it,  and  the 
company  resorted  to  the  only  means  in  their  power  to  compel  its 
abandonment,  to  wit :  his  removal  from  the  boat.  This  was  done  with 
no  unnecessary  force,  and  accompanied  by  no  indignity. 

In  my  opinion,  the  removal  was  justified,  and  the  decree  must  be 
reversed.^  ^ 


JOHNSON  V.  DOMINION  EXPRESS  CO. 

(High  rourt  of  Justice  for  Ontario,  1896.     28  Ont.  203.) 

Action  to  compel  defendant  to  carry  goods  tendered  to  it,  and  for 
damages  for  refusing  to  carry.  Defendant  was  an  express  company 
doing  business  under  a  contract  with  the  Canadian  Pacific  Railway 
Company  over  the  railway's  lines.  It  charged  a  lower  rate  per  pound 
for  large  parcels  than  for  small  ones.  Plaintiffs  planned  to  establish 
a  business  of  collecting  small  parcels,  putting  them  together  into  large 
parcels,  and  shipping  them  by  the  defendant  company  to  a  point  of 
distribution  at  the  lower  rate,  and  thus  to  take  from  defendant  its 
business  of  carrying  small  parcels. 

Rose,  J.^^  *  *  ''^  It  seems  to  me  that  the  question  comes  sim- 
ply down  to  this :  Did  the  defendant  company  hold  itself  out  as  a 
carrier  to  carry  goods  for  persons  in  the  position  of  the  plaintififs,  and 
for  the  purposes  for  which  the  plaintiffs  desired  them  to  be  carried? 
and,  secondly,  if  it  did,  does  the  tariff  rate  or  rates  charged  to  others, 
on  the  evidence  before  me,  establish  that  the  amount  tendered  by  the 
plaintiffs  was  a  reasonable  amount,  or  that  the  defendant  company 
might  not  well  charge  for  each  parcel  in  a  packed  parcel  according  to 
its  usual  rates  ? 

I  find  as  a  fact  that  the  rates  tendered  by  the  plaintiffs,  or  which 
they  were  willing  to  pay,  were  not  reasonable  under  the  circumstances. 
I  do  not  find  it  necessary  to  determine  whether  or  not  the  defendant 
has  the  right  absolutely  to  decline  to  carry  parcels  so  packed  for  the 
plaintiffs ;  but  I  say  I  do  not  think  the  defendant  ever  intended  to 
hold  itself  out  to  the  public  as  the  carrier  of  the  goods  of  a  rival  ex- 
press company,  making  use  of  it's  credit  and  its  facilities  for  doing 

business,  to  the  aggrandizement  of  its  rival  and  its  own  destruction. 

*     *     * 

In  my  opinion,  the  action  should  be  dismissed,  with  costs. 

II  Compare  So.  Fla.  R.  Co.  v.  Rliodes,  2o  Fla.  40.  5  South.  &33.  3  L.  R.  A. 
733,  23  Am.  St.  Rep.  ."506  (1889),  employe  of  competing  line  wearing  its  uni- 
form ;  Ford  V.  East  La.  R.  Co..  110  La.  414,  34  South.  .58.5  (1903),  passenger 
whose  business  was  "scalping"  the  carrier's  nontransferable  tickets. 

1 2  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion 
omitted. 


Ch.  1)  EXTENT   OF   OBLIGATION   TO    SERVE.  539 

GALENA  &  C.  U.  R.  CO.  v.  RAE. 

(Supreme  Court  of  Illinois,  1857.     IS  111.  488,  68  Am.  Dec.  574.) 

Skinner,  J.^^  This  was  an  action  on  the  case  against  the  railroad 
company,  as  common  carriers,  for  refusal  to  carry,  and  for  delay  in 
carrying,  the  grain  of  the  plaintiff  below  from  Rockford  to  Chicago. 
The  cause  was  tried  by  jury,  who  returned  a  verdict  of  $4,950  against 
the  company,  upon  which  the  court  rendered  judgment,  refusing  to 
grant  a  new  trial. 

The  evidence  is  very  voluminous,  and,  in  the  opinion  of  the  court, 
is  insufficient  to  sustain  a  verdict  for  the  amount  found.  *  *  *  ^s 
the  cause  will  be  again  for  trial,  we  will  'state  those  rules  of  law  in  con- 
troversy which  are  material  to  the  case  made  by  the  record.     *     *     * 

It  was  incumbent  on  the  plaintiff  below  to  prove  a  tender  of  the  cus- 
tomary price  of  carrying  the  grain  offered  to  be  shipped,  or  a  readi- 
ness and  willingness  to  pay  according  to  the  course  and  usage  of  the 
company  in  such  case.  The  company  should  have  a  lien  upon  the 
grain  carried  for  reasonable  charges,  and  could  withhold  the  same 
from  delivery  until  paid.  A  readiness  and  willingness  to  pay  the  rea- 
sonable charges  for  carrying,  according  to  the  usage  of  the  company, 
would  be  sufficient  to  impose  the  obligation  to  carry,  unless  the  com- 
pany required  prepayment,  and  then  the  plaintiff  would  be  required  to 
offer  and  be  ready  to  pay  accordingly.  Slight  evidence,  however,  of 
readiness  and  willingness  to  pay  would  be  sufficient,  and  they  may  be 
presumed  or  inferred  from  surrounding  circumstances  tending  to  raise 
such  presumption.^*     *     *     *     Judgment  reversed, 

13  Parts  of  the  opinion  ai'e  omitted. 

1*  A  common  carrier  may  require  prepayment  of  fare.  A  passenger,  who 
after  reasonable  opiwrtunity  fails  to  comply  with  a  demand  for  payment  of 
fare,  forfeits  his  riglit  to  be  carried,  and  a  tender  after  steps  liave  been  talc- 
en  to  stop  the  train  to  put  him  off  is  of  no  avail.  Asmore  v.  So.  &  Fla.  R.  Co., 
88  Ga.  529,  15  S.  E.  13,  16  L.  R,  A.  53  (1892). 


540  THE  COMMON    CARRIER'S    DL'TY    TO   SERVE.  (Part  5 

■       CHAPTER  II 
ADEQUACY  OF  SERVICE 


BRANCH  V.  WILMINGTON  &  W.  R.  CO. 

(Supreme  Court  of  North  Carolina,  1877.     77  N.  C.  347.) 

On  the  10th  of  October,  1876,  the  plaintiff  deHvered  to  defendant 
company,  at  its  depot  in  the  town  of  Black  Creek,  Wilson  county,  thir- 
ty-one bales  of  cotton,  to  be  shipped  to  Norfolk,  Virginia,  and  at  the 
same  time  the  defendant  gave  to  the  plaintiff  a  bill  of  lading  for  the 
cotton,  signed  by  the  agent  of  the  company.  *  *  *  'j'j^g  cotton  was 
shipped  on  the  morning  of  the  19th  of  October,  18T6. 

The  defendant  owned  a  large  number  of  cars  and  engines — more 
than  sufficient  for  the  ordinary  freight  business — but  during  the  sea- 
son of  1876  there  was  a  great  press  of  business  for  about  six  weeks 
in  transporting  through  cotton  from  Wilmington  to  the  Northern  mar- 
kets, which  amounted  to  4,200  bales  during  the  said  month.  The  cars 
were  used  for  the  shipment  of  this  freight,  a  large  quantity  of  which 
was  detained  in  Wilmington,  owing  to  the  inability  of  the  company  to 
afford  more  speedy  transportation.  There  was  considerable  competi- 
tion between  dift'erent  roads  for  this  class  of  business.  The  gauge  of 
the  road  south  of  Wilmington,  from  which  the  cotton  was  received,  is 
different  from  that  of  the  defendant's  road,  which  rendered  it  neces- 
sary to  break  bulk  at  Wilmington.  The  gauge  of  the  roads  north  of 
Weldon  is  the  same  as  that  of  defendant's  road,  and  the  defendant 
could  have  obtained  from  the  North  a  sufficient  number  of  cars  for  the 
transportation  Of  all  its  freight,  both  local  and  through. 

Upon  the  foregoing  facts  found  by  his  honor,  a  jury  trial  having 
been  waived,  there  was  judgment  that  tl>e  plaintiff  recover  of  the  de- 
fendant the  sum  of  $100  and  costs,  and  the  defendant  appealed. 

Rodman,  J.i  *  *  *  The  Legislature  considered  the  common- 
law  liability  as  insufficient  to  compel  the  performance  of  the  public 
duty.  It  must  have  thought  that  the  interests  of  local  shippers,  for 
whose  interest  principally  the  road  was  built,  and  against  whom  the 
company  had  a  complete  monopoly,  were  being  sacrificed  by  wanton 
delays  of  carriage  in  order  that  the  company  might  obtain  the  carriage 
from  points  where  there  were  competing  lines  by  land  or  water — as 
from  Wilmington  or  Augusta.  It  declared,  therefore,  that  the  maxi- 
mum of  delay  should  be  five  days  after  a  receipt  for  carriage,  and  im- 
posed a  penalty  for  every  day's  delay  beyond.  The  act  does  not  super- 
sede or  alter  the  duty  or  liability  of  the  company  at  common  law.    The 

1  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


Ch.  2)  ADEQUACY   OF    SERVICE.  541 

penalty  in  the  case  provided  for  is  superadded.     The  act  merely  en- 
forces an  admitted  duty. 

2.  Having  seen  that  the  company  was  prima  facie  liable,  we  proceed 
to  consider  its  excuse.  It  is  unnecessary  to  consider  whether  any  ex- 
cuse short  of  "an  act  of  God,  or  of  the  king's  enemies,"  would  suffice. 
1  Pars.  Shipping,  314.  We  concur  with  the  judge  that  the  excuse 
■ofifered  was  insufficient. 

A  common  carrier  (especially  one  having  a  monopoly  of  the  car- 
riage), who  invites  the  public  custom,  is  bound  to  provide  sufficient 
power  and  vehicles  to  carry  all  the  goods  which  his  invitation  naturally 
brings  to  him.  The  quantity  of  local  freight  he  can  foresee  with  ap- 
proximate accuracy,  and  his  first  duty  is  to  provide  for  that.  If,  in 
consequence  of  special  inducements  held  out  by  him,  the  amount  of 
freight  from  distant  and  foreign  points,  or  through  freight's,  which 
may  not  be  a  matter  of  certain  calculation,  is  unexpectedly  large,  he  is 
not  at  liberty  to  delay  and  injure  the  local  shippers,  whose  wants  he 
foreknew  and  was  bound  to  provide  for;  but  he  must  rather  reject 
the  distant  freight,  at  the  risk  of  breaking  his  promise  and  incurring 
damages  to  those  shippers,  because  the  quantity  of  their  freight  he 
could  not  foresee,  and  was,  therefore,  bound  absolutely  to  provide  for 
only  by  his  own  voluntary  promise,  and  not  by  a  duty  imposed  by  the 
common  law. 

That  the  defendant  did  not  have  a  sufficiency  of  cars  in  which  to 
carry  plaintiff's  cotton  cannot  be  deemed  a  legal  excuse,  when  it  is 
seen  that  the  deficiency  was  in  consequence  of  it's  own  acts  in  inducing 
large  shipments  from  points  beyond  its  Southern  terminus. 

The  effect  of  these  inducements  it  was  bound  to  foresee  and  provide 
for.  If  a  railroad  should  advertise  that  on  a  certain  day  it  would  take 
all  persons,  say  from  Raleigh  to  Charlotte,  on  it's  regular  passenger 
train  at  half  price,  and  its  cars  should  in  consequence  be  filled,  it  would 
not  excuse  it  in  excluding  any  local  passenger.  Its  duty  was  to  pro- 
vide accommodation  for  the  extraordinary  passengers  in  addition  to 
the  necessary  accommodation  of  its  usual  local  travel,  and  not  to  the 
exclusion  of  such  travelers. 

'We  can  cite  no  case  in  which  the  question  w^e  have  been  considering 
has  been  made;   but  our  conclusion  seems  just  and  reasonable. 

A  delay  of  local  shipments,  caused  by  a  lack  of  cars,  which  lack  is 
caused  by  a  pressure  of  through  freight,  caused  by  inducements  held 
out  by  railroad  companies,  was  the  very  evil  which  the  Act  of  1871-75 
undertook  to  remedy;  and  if  such  an  excuse  is  admitted,  the  act  is  a 
dead  letter,  and  we  shall  continue  to  see  farmers,  whose  taxes  built  the 
roads,  carrying  their  crops  to  market  in  ox  carts  along  the  sides  of 
tlie  railroads. 

3.  It  appears,  however,  that  the  defendant  company  could  have  got- 
ten additional  cars  from  the  North,  and  it  does  not  appear  that  they 
could  not  have  been  gotten  by  ordinary  diligence. 

A  railroad  company  is  bound  at  common  law,  independently  of  any 


542  THE  COMMON    CARRIER'S   DUTY   TO   SERVE.  (Part  5 

statute,  to  use  at  least  ordinary  diligence  in  procuring  a  sufficiency  of 
cars  to  carry  all  the  freight  tendered  it,  and  certainly  all  that  is  ac- 
cepted by  it  for  shipment.  *  *  *  The  statute  only  added  a  penalty 
for  the  neglect  to  perform  the  duty  after  a  certain  time.^     *     *     * 


BAKER  V.  BOSTON  &  M.  R.  CO. 

(Supreme  Court  of  New  Hampshire,  1906.    74  N.  H.  100,  05  Atl.  380,  124  Am. 

St.  Rep.   937.) 

Case  for  negligence.  Transferred  from  the  superior  court;.  The 
questions  of  law  are  raised  by  the  plaintiff's  demurrer  to  the  plea. 

Bingham,  J.^  The  defendants  are  engaged  in  the  carrying  trade 
as  common  carriers  of  freight  and  passengers.  Whiting  &  Sons  are 
milk  contractors  who  buy  and  sell  milk,  buying  it  of  the  producers  on 
the  line  of  the  defendants'  road  and  distributing  it  at  different  points 
along  the  same.  In  consideration  of  the  defendants  agreeing  to  fur- 
nish Whiting  &  Sons  with  cars  provided  with  icing  facilities  for  the 
transportation  of  their  milk,  Whiting  &  Sons  agreed  to  pay  them  a 
stipulated  sum,  to  furnish  the  ice,  to  provide  men  to  do  the  work 
incident  to  handling  and  caring  for  the  milk  while  in  transit,  and  to 
indemnify  the  defendants  against  the  claims  of  any  of  the  employes  of 
Whiting  &  Sons  "on  account  of  personal  injury  or  damage  to  prop- 
erty received  while  on  the  cars  or  premises"  of  the  road.  In  view  of 
the  provisions  of  this  contract,  and,  in  consideration  of  his  future  em- 

2  The  judgment  was  reversed  for  error  in  assessing  the  statutory  penalty, 
and  judgment  entered  for  plaintiff  for  $75. 

"The  sufficiency  of  such  accommodations  must  be  determined  by  the  amount 
of  freight  and  the  number  of  passengers  ordinarily  transported  on  any  given 
line  of  road.  The  duty  of  a  company  to  the  public,  in  this  respect,  is  not  pe- 
culiar to  any  season  of  the  year,  or  to  any  particular  emergency  that  may 
possibly  arise  in  the  course  of  its  business.  The  amount  of  busine.ss  ordi- 
narily done  by  the  road  is  the  only  proper  measure  of  its  obligation  to  fur- 
nish transportation."  Fagg,  J.,  in  Ballentine  v.  N.  M.  II.  Co.,  40  Mo.  491, 
93  Am.  Dec.  315  (1867). 

"The  plaintiff  sues  for  injury  to  his  goods  and  for  damages  sustained  by 
mireasonable  delay  in  their  delivery.  *  *  *  It  is  to  be  noted  that  the  bas- 
is of  this  action  is  the  alleged  breach  of  the  duty  imposed  by  the  common 
law  upon  carriers  to  safely  carry  and  within  a  reasonable  time  deliver  goods 
tendered  them  for  that  purpose.  For  failure  to  perform  this  duty  the  person 
injured  has  a  cause  of  action,  in  which  he  may  recover  such  damages  as  he 
sustained  within  the  reasonable  contemplation  of  the  parties  to  the  contract." 
Connor,  J.,  in  Meredith  v.  R.  Co.,  137  N.  C.  478,  50  S.  E.  1  (1905). 

For  the  duty  of  a  common  carrier  to  inform  the  shipper  if  unable  to  give 
adequate  service,  see  Nichols  v.  Oregon  Short  Line,  24  Utah.  83,  GO  Pac.  768, 
91  Am.  St.  Rep.  778  (1901),  inability  to  com])ly  with  notice  t/o  furnish  cars ; 
Swan  v.  Western  Union  Tel.  Co.,  129  Fed.  318,  63  C.  C.  A.  550,  67  L.  R.  A. 
1.53  (1904),  wires  down;  Railroad  Co.  v.  Mfg.  Co.,  10  Wall.  318,  21  K  Ed. 
297  (1872),  goods  to  be  delivered  to  next  carrier,  received  with  knowledge 
that  such  carrier  could  not  take  delivery  promptly.  For  the  carrier's  duty 
where  the  consignee  will  not  accept,  see  ante,  p.  143. 

3  The  statement  of  facts  is  abbreviated,  and  parts  of  the  opinion  omitted. 


Ch.  2)  ADEQUACY    OF   SERVICE.  543 

ployment  and  other  considerations,  the  plaintiff,  an  employe  of  Whit- 
ing &  Sons  engaged  to  handle  and  care  for  the  milk,  agreed  with 
Whiting  &  Sons  not  to  make  or  prosecute  any  claim  against  the  de- 
fendants on  account  of  injuries  received  by  him  during  his  employ- 
ment and  to  indemnify  Whiting  &  Sons  against  all  liability  on  account 
of  any  such  claim.  The  plaintiff  was  injured  through  the  defendants' 
negligence  while  on  their  train  in  the  performance  of  his  duties  under 
the  contract,  and  the  question  we  are  called  upon  to  consider  is  whether 
these  contracts  are  valid  and  constitute  a  defense  to  this  action. 

The  defendants  say  that  both  contracts  are  valid,  and  that  they 
should  be  permitted  to  avail  themselves  of  the  benefits  of  the  plaintiff  s 
contract  with  Whiting  &  Sons  to  avoid  circuity  of  action.  But  wheth- 
er they  can  avail  themselves  of  the  provisions  of  that  contract  to  avoid 
circuity  of  action  depends  upon  whether  their  contract  with  Whiting 
&  Sons  is  one  the  law  will  recognize  and  enforce.  The  defendants 
do  not  dispute  the  proposition  that  common  carriers  cannot  by  contract 
relieve  themselves  from  liability  arising  from  their  own  negligence  in 
the  performance  of  duties  imposed  upon  them  by  law.     *     *     * 

Their  contention  as  to  this  matter  is  simply  this:  That  the  fur- 
nishing of  cars  without  icing  facilities  would  have  been  a  full  compli- 
ance with  their  public  duty  as  common  carriers,  and  that  Whiting  & 
Sons,  as  shippers  of  milk,  could  not  have  required  them  to  furnish  cars 
with  icing  facilities  for  its  transportation.  In  answer  to  this  it  may  be 
said  that,  as  incident  to  their  business  of  common  carriers  of  milk,  it 
was  the  defendants'  public  duty  to  provide  reasonable  facilities  for  its 
reception  and  delivery,  including  care  during  transportation.  Flint  v. 
Railroad,  73  N.  H.  141, 144,  59  Ad.  938 ;  Sager  v.  Railroad,  31  Me.  228, 
1  Am.  Rep.  659 ;  Steinweg  v.  Railway,  43  N.  Y.  123,  3  Am.  Rep.  673 ; 
Welsh  V.  Railroad,  10  Ohio  St.  65,  75  Am.  Dec.  490 ;  Beard  &  Sons 
V.  Railroad,  79  Iowa,  518,  520,  44  N.  W.  800,  7  L.  R.  A.  280,  18  Am. 
St.  Rep.  381;  Potts  v.  Railway,  17  Mo.  App.  394;  Merchants'  Dis- 
patch Co.  V.  Cornforth,  3  Colo.  280,  25  Am.  Rep.  757;  2  Hutch.  Car. 
(3d  Ed.)  §§  495-497 ;  Ray,  Fr.  Car.  §  4,  and  cases  there  cited.  "A  rail- 
way company  is  bound  to  provide  cars  reasonably  fixed  for  the  conveni- 
ence of  the  particular  class  of  goods  it  undertakes  to  carry.  It  is  the 
duty  of  the  carrier  to  provide  suitable  means  of  transportation  adapted 
in  each  case  to  the  particular  class  of  goods  he  undertakes  to  transport. 
He  must  protect  his  goods  from  destruction  or  injury  by  the  elements, 
from  the  effects  of  delay,  from  any  source  of  injury  which,  in  the  ex- 
ercise of  care  and  ordinary  intelligence,  may  be  known  or  anticipated." 
Ray,  Fr.  Car.  supra.  He  must  "provide  all  suitable  means  of  trans- 
portation and  exercise  that  degree  of  care  which  the  nature  of  the 
property  requires."  Smith  v.  Railroad,  12  Allen  (Mass.)  531,  534,  90 
Am.  Dec.  166. 

In  addition  to  the  duty  imposed  upon  the  defendants  by  the  common 
law,  our  statutes  provide  that  "the  proprietors  of  every  railroad  shall 


544  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

furnish  to  all  persons  reasonable  and  equal  terms,  facilities,  and  ac- 
commodations for  the  transportation  of  persons  and  property  over  their 
railroad,  and  for  the  use  of  depots,  buildings,  and  grounds  in  connec- 
tion with  such  transportation."  Pub.  St.  1901,  c.  IGO,  §  1 ;  McDuft'ee 
V.  Railroad,  52  N.  H.  430,  457,  13  Am.  Rep.  72.  Inasmuch,  therefore, 
as  the  defendants  were  common  carriers  of  milk,  and  as  it  was  their 
public  duty  to  furnish  all  persons  desiring  to  ship  that  commodity  with 
reasonable  facilities  and  accommodations  for  its  transportation,  this 
contention  of  the  defendants  resolves  itself  into  the  inquiry  whether 
their  plea  states  facts  from  which  it  can  be  inferred  that  the  furnishing 
of  cars  with  icing  facilities  was,  under  the  circumstances,  more  than 
they  could  reasonably  be  required  to  do  in  the  fulfillment  of  their  pub- 
lic duty,  for  the  question  what  facilities  and  accommodations  were  a 
reasonable  compliance  with  their  public  duty — or,  to  state  the  proposi- 
tion in  another  way,  whether  the  cars  furnished  were  more  than  their 
public  duly  required  them  to  do — is  a  question  of  fact.  Boothby  v. 
Railroad,  m  N.  H.  343,  344,  34  Atl.  157. 

The  plea  does  not  allege  that  it  would  have  been  reasonable,  in  view 
of  the  defendants'  public  duty,  for  them  to  have  refused  to  furnish  the 
Whitings  with  cars  provided  with  icing  facilities  for  the  transportation 
of  the  large  quantity  of  milk  which  they  were  daily  desiring  to  ship, 
nor  facts  from  which  such  an  inference  could  reasonably  be  made.  On 
the  contrary,  it  is  alleged  in  the  plea  that  "at  the  time  of  the  execution 
of  all  the  agreements  herein  mentioned,  large  quantities  of  milk  were 
produced  by  individual  farmers  living  along  the  line  of  said  defend- 
ants' railroad.  The  quantity  was  such  that  it  was  more  economical  and 
more  advantageous  to  all  parties — producers,  distributors,  and  consum- 
ers— to  have  it  transported  in  special  cars  furnished  with  icing  facili- 
ties, than  to  have  it  carried  in  ordinary  cars."  The  only  reasonable 
deduction  to  be  made  from  this  allegation  is  that  cars  with  icing  facili- 
ties were  reasonably  necessary,  and  that  those  furnished  did  not  afford 
greater  facilities  than  the  defendants'  public  duty  required. 

It  is  further  contended  that  the  defendants  could  not  have  been  re- 
quired to  carry  the  shippers'  servants  in  milk  cars,  and  that,  when  they 
agreed  to  carry  them  in  these  cars,  they  undertook  to  do  more  than 
their  public  duty  required,  and  on  this  account  could  lawfully  demand 
of  the  shippers  the  contract  of  indemnity  which  they  did.  But  this  con- 
tention is  not  supported  by  the  facts  in  the  case.  As  already  stated, 
it  was  the  defendants'  duty  to  provide  suitable  cars  in  which  to  trans- 
port the  milk.  It  was  also  their  duty  to  provide  men  to  handle  and 
care  for  it  while  being  transported.  Beard  &  Sons  v.  Railroad,  79 
Iowa,  518,  44  N.  W.  800,  7  L.  R.  A.  280,  18  Am.  St.  Rep.  381;  Bos- 
cowitz  v.  Express  Co.,  93  111.  529,  34  Am.  Rep.  191 ;  Chesapeake,  etc., 
R.  R.  V.  Bank,  92  Va.  495,  23  S.  E.  935,  44  L.  R.  A.  449 ;  and  cases 
above  cited.     *     *     * 

In  this  case  it  does  not  appear  that  the  shippers  were  afforded  the 
opportunity  of  having  the  defendants  perform  their  full  duty  and  handle 


Ch.  2)  ADEQUACY    OF   SERVICE.  545 

and  care  for  the  milk.  There  is  no  allegation  in  the  defendants'  plea, 
or  provision  in  the  contract  of  shipment,  to  that  effect,  and,  in  view 
of  the  absence  of  such  an  allegation  or  provision,  and  of  the  defend- 
ants' contention  that  they  were  under  no  duty  even  to  provide  cars 
with  icing  facilities  for  'shipping  the  milk,  it  is  to  be  inferred  the 
shippers  were  not  afforded  such  an  opportunity,  and  that  the  defend- 
ants refused  to  provide  the  cars  for  the  milk  unless  the  shippers 
would  furnish  the  men  to  handle  and  care  for  it  and  would  indem- 
nify the  defendants  against  all  liability  for  damage's  to  the  men  and 
their  property.  In  such  case  it  is  clear  that  we  must  hold  that  the 
shippers'  contract  of  indemnity  is  unreasonable  and  void,  and  that  the 
plaintiff's  contract  with  the  shippers,  which  is  based  upon  the  in- 
demnity contract,  cannot  be  availed  of  by  the  defendants  as  a  defense 
to  this  action. 

The  plaintiff  was  upon  the  cars  at  the  time  of  the  accident  with 
the  defendants'  consent.  His  passage  was  not  free.  The  considera- 
tion for  it  was  the  service  he  rendered  in  caring  for  the  milk,  or  the 
charge  against  his  employers  in  shipping  it.  And  as  the  defendants 
cannot,  on  the  facts  disclosed  in  the  plea,  avail  themselves  of  the  plain- 
tiff's agreement  with  the  shippers,  it  was  the  defendants'  duty  to  use 
due  care  for  the  plaintiff's  safety,  and,  if  they  or  their  servants  were 
negligent,  and  he  was  injured  in  consequence  thereof,  they  are  liable 
in  damages.    *     *     * 

Demurrer  sustained.* 

*  "As  common  carriers  they  are  by  law  bound  to  receive,  transport,  and 
deliver  freights,  offered  for  that  purpose,  in  accordance  vi^ith  the  usual 
course  of  business.  The  delivery,  when  practicable,  must  be  to  the  con- 
signee. But  the  rule  which  requires  common  carriers  by  land  to  deliver  to 
the  consignee  personally  at  his  place  of  business,  has  been  somewhat  relaxed 
in  favor  of  said  roads  on  the  ground  that  they  have  no  means  of  delivering 
beyond  their  lines;  but  it  was  held  in  Vincent  v.  Chicago  &  Alton  R.  Co.,  49 
ill.  33,  that  at  common  law.  and  independent  of  the  statute  relied  on  in  the 
argument,  that  in  cases  where  a  shipment  of  grain  "was  made  to  a  party 
having  a  warehouse  on  the  line  of  the  carrying  road,  who  had  provided  a 
connecting  track  and  was  ready  to  receive  it,  it  would  be  the  duty  of  the 
railroad  company  to  make  a  personal  delivery  of  the  grain  to  the  consignee 
at  his  warehouse;  because,  say  the  court,  'the  common-law  rule  must  be 
applied,  as  the  necessity  of  its  relaxation'  did  not  exist.  This  rule  is 
just  and  convenient,  and  necessaiy  to  an  expeditious  and  economical  deliv- 
ery of  freights.  It  has  regard  to  their  proper  classification,  and  to  the  cir- 
cumstances of  the  particular  case.  Under  it  articles  susceptible  of  easy 
transfer  may  be  delivered  at  a  general  delivery  depot  provided  for  the  pur- 
pose. But  live  stock,  coal,  ore,  grain  in  bulk,  marble,  etc..  do  not  belong  to 
this  class.  For  these  some  other  and  more  appropriate  mode  of  deliver.v  must 
be  provided.  Hence  it  is  that  persons  engaged  in  receiving  and  forwarding 
live  stock,  manufacturers  consuming  large  quantities  of  heavy  material,  deal- 
ers in  coal,  and  grain  merchants,  receiving,  storing,  and  foi*warding  grain 
in  bulk,  who  are  dependent  on  railroad  transportation,  usually  select  loca- 
tions for  the  prosecution  of  their  business  contiguous  to  railroads,  where  they 
can  have  the  benefit  of  side  connections  over  which  their  freight  can  be  de- 
livered in  bulk  at  their  private  deiJots."  Baxter,  C.  J.,  in  Coe  v.  Louisville 
&  N.  R.  Co.  (C.  C.)  3  Fed.  775  (1880). 
Green  Carr. — 35 


546  THE  COMMON    CARRIER'S    DUTY    TO  SERVE.  (Part  5 

BEDFORD-BOWLING  GREEN  STONE  CO.  et  al.  v.  OMAN. 

(Court  of  Appeals  of  Kentucky,  1903.    115  Ky.  3G9,  73  S.  W.  1038.) 

Barker,  J.^  This  action  involves  the  rights  of  appellees  to  the  use 
of  a  railroad  switch  which  runs  from  the 'Memphis  junction  of  the 
Louisville  &  Nashville  Railroad  Company's  line  in  Warren  county, 
Ky.,  about  3^2  niiles,  to  the  quarry  of  the  appellant  Bedford-Bowling 
Green  Stone  Company.    *    *    * 

John  Oman,  having  opened  a  quarry  on  the  Loving  tract,  set  apart 
to  him,  very  near  the  quarry  operated  by  the  Bedford-Bowling  Green 
Stone  Company,  is  naturally  very  anxious  to  use  the  switch  in  trans- 
porting his  machinery  to  his  quarry,  and  in  transporting  his  stone  to 
the  main  line  of  the  Louisville  &  Nashville  Railroad ;  it  being  im- 
practicable to  haul  such  heavy  freight  for  so  long  a  distance  in  any 
other  way.  We  do  not  think,  however,  he  has  any  interest  in  the 
switch  in  question.     *     *     * 

The  railroad  switch  involved  in  this  litigation  was  built  by  the  White 
Stone  Quarry  Company,  and  in  so  doing  they  entered  into  a  contract 
with  the  Louisville  &  Nashville  Railroad  Company.  *  *  *  After- 
wards, on  the  23d  day  of  May,  1893,  the  property  having  passed  into 
the  ownership  of  the  Bowling  Green  Stone  Company,  a  new  contract 
was  made  between  it  and  the  railroad  company.     *     *     * 

This  contract,  and  other  evidence  in  the  record  bearing  upon  the 
question,  show  that  the  Louisville  &  Nashville  Railroad  Company, 
during  the  continuance  of  this  last  contract,  has  the  control  and  man- 
agement of  the  railroad  switch.  It  owns,  controls,  and  operates  the 
engines  and  other  rolling  stock  which  pass  over  the  line.  It  keeps 
the  roadbed  in  repair,  and  owns  all  of  the  material  which  goes  into 
it.  So  far  as  this  record  shows,  it  exercises  the  same  control  and 
dominion  over  this  line  that  it  does  over  any  other  part  of  its  system ; 
and  we  think,  by  the  terms  of  the  contract  in  question,  the  switch, 
during  the  continuance  of  the  contract,  at  least,  becomes  a  part  of  the 
general  system  of  the  Louisville  &  Nashville  Railroad  Company.  This 
being  so,  it  cannot  lawfully  refuse  to  receive  and  transport  freight 
belonging  to  appellees  to  and  from  such  reasonable  points  along  the 
line  at  which  they  may  lawfully  ship  or  receive  it.^     *     *     * 

While  it  is  the  duty  of  the  railroad  company  thus  to  receive  and 
transfer  freight  for  appellee,  this  can  be  done  only  at  points  along 
the  line  of  the  railroad  switch  in  question  at  which  appellee  may  law- 
fully receive  or  ship  it.  He  has  no  right  to  trespass  upon  the  private 
property  of  appellants  in  order  to  reach  the  road.     *     *     * 

5  Parts  of  the  opinion  are  omitted. 

6  The  learned  judge  here  quoted  from  the  opinion  in  L.  &  X.  R.  Co.  v.  Pitts- 
burg, etc.,  Co.,  Ill  Ky.  960,  64  S.  W.  969,  55  L.  R.  A.  601,  98  Am.  St.  Rep. 
447  (1901). 


Ch.  2)  ADEQUACY   OF   SERVICE.  547 

For  the  reasons  herein  given,  this  case  is  kffirmed  as  to  the  Louis- 
ville &  Nashville  Railroad  Company,  and  reversed  as  to  the  Bedford- 
Bowling  Green  Stone  Company,  for  proceedings  consistent  with  this 
opinion. 


JONES  V.  NEWPORT  NEWS  &  IVI.  V.  CO. 

(Circuit  Court  of  Appeals,  Sixth  Circuit,  1895.     65  Fed.  73(3,  13  C.  C.  A.  95.) 

Action  by  H.  M.  Jones  against  the  Newport  News  &  Mississippi 
\"alley  Company  for  injury  to  and  discontinuance  of  a  railroad  switch 
to  plaintiff's  warehouse.  A  demurrer  was  sustained  to  that  part  of 
the  petition  which  claimed  damages  for  discontinuance  of  the  switch, 
and  plaintiff  brings  error.    *     *     * 

Taft,  Circuit  Judge.''  Plaintiif  bases  his  claim  for  damages — First, 
on  the  violation  of  an  alleged  common-law  duty;  and,  second,  on  the 
breach  of  a  contract. 

1.  The  proposition  put  forward  on  plaintiflf's  behalf  is  that  when  a 
railroad  company  permits  a  switch  connection  to  be  made  between 
its  line  and  the  private  warehouse  of  any  person,  and  delivers  mer- 
chandise over  it  for  years,  it  becomes  part  of  the  main  line  of  the 
railroad,  and  cannot  be  discontinued  or  removed,  and  this  on  com- 
mon-law principles  and  without  the  aid  of  a  statute.  It  may  be  safely 
assumed  that  the  common  law  imposes  no  greater  obligation  upon  a 
common  carrier  with  respect  to  a  private  individual  than  with  respect 
to  the  public.  If  a  railroad  company  may  exercise  its  discretion  to 
discontinue  a  public  station  for  passengers  or  a  public  warehouse  for 
freight  without  incurring  any  liability  or  rendering  itself  subject  to 
judicial  control,  it  would  seem  nece'ssarih'  to  follow  that  it  may  exer- 
cise its  discretion  to  establish  or  discontinue  a  private  warehouse  for 
one  customer. 

In  Northern  Pac.  Ry.  Co.  v.  Washington,  142  U.  S.  492.  12  Sup. 
Ct.  283,  35  L.  Ed.  1092,  it  was  held  that  a  mandamus  would  not  lie 
to  compel  a  railroad  company  to  establish  a  station  and  stop  its  trains 
at  a  town  at  which  for  a  time  it  did  stop  its  trains  and  deliver  its 
freight. 

In  Com.  v.  Fitchburg  R.  Co.,  12  Gray  (Alass.)  180,  it  was  attempted 
to  compel  a  railroad  company  to  run  regular  passenger  trains  over 
certain  branch  lines  upon  which  they  had  been  run  for  a  long  time, 
but  had  been  discontinued  because  they  were  unremunerative.  The 
court  held  that  mandamus  would  not  lie  because  the  maintenance  of 
such  facilities  was  left  to  the  discretion  of  the  directors. 

Referring  to  this  and  other  cases,  Mr.  Justice  Gray,  delivering  the 
opinion  of  the  Supreme  Court  in  No.  Pac.  Ry.  Co.  v.  Washington, 
supra,  said:    "The  difficulties  in  the  way  of  issuing  a  mandamus  to 

7  Tarts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


548  THE  COMMON  cakuier's  DUTY  TO  SEUVB.  (Part  5 

compel  the  maintenance  of  a  railroad  and  the  running  of  trains  to  a 
terminus  fixed  by  the  charter  itself  are  much  increased  when  it  is 
sought  to  compel  the  corporation  to  establish  or  to  maintain  a  sta- 
tion, or  to  stop  its  trains  at  a  particular  place  on  the  line  of  its  road. 
The  location  of  stations  and  warehouses  for  receiving  and  delivering 
passengers  and  freight  involves  a  comprehensive  view  of  the  interests 
of  the  public,  as  well  as  of  the  corporation  and  its  stockholders,  and 
a  consideration  of  many  circumstances  concerning  the  amount  of  the 
population  and  business  at,  near,  or  within  convenient  access  to  one 
point  or  another,  which  are  more  appropriate  to  be  determined  by  the 
directors,  or  in  case  of  abuse  of  their  discretion  by  the  Legislature, 
or  by  administrative  boards  intrusted  by  the  Legislature  with  that 
duty,  than  by  ordinary  judicial  tribunals.  *  *  *  'po  hold  that  the 
directors  of  this  corporation,  in  determining  the  number,  place,  and 
size  of  its  stations  and  other  structures,  having  regard  to  the  public 
convenience  as  well  as  to  its  own  pecuniary  interests,  can  be  controlled 
by  the  courts  by  writ  of  mandamus,  would  be  inconsistent  with  many 
decisions  of  high  authority  in  analogous  cases."  * 

Among  the  cases  which  Mr.  Justice  Gray  cites  in  support  of  the 
foregoing  is  that  of  People  v.  New  York,  L.  E.  &  W.  R.  Co.,  104 
N.  Y.  58,  9  N.  E.  85G,  58  Am.  Rep.  48L  In  that  case  it  was  sought 
to  compel  a  railroad  company  by  mandamus  to  enlarge  a  passenger 
and  freight  station  which  was  admittedly  inadequate,  but  the  writ 
was  denied.  The  ground  for  the  conclusion  of  the  court,  as  stated  by 
Mr.  Justice  Gray,  was  that  "the  defendant,  as  a  carrier,  was  under  no 
obligation,  at  common  law,  to  provide  warehouses  for  freight  offered, 
or  station  houses  for  passengers  waiting  transportation,"  and  no  such 
duty  was  imposed  by  statute.  See,  also,  Florida,  C.  &  P.  R.  Co.  v. 
State.  31  Fla.  482,  13  South.  103,  20  L.  R.  A.  419,  34  Am.  St.  Rep.  30. 

It  is  true  that  the  foregoing  were  cases  of  mandamus,  and  that  the 
court  exercises  a  discretion  in  the  issuance  of  that  writ  which  cannot 
enter  into  its  judgment  in  an  action  for  damages  for  a  breach  of  duty. 
But  the  cases  show  that  the  reason  why  the  writ  cannot  go  is  because 
there  is  no  legal  right  of  the  pubHc  at  common  law  to  have  a  station 
established  at  any  particular  place  along  the  line,  or  to  object  to  a 
discontinuance  of  a  station  after  its  establishment.  They  make  it  clear 
that  the  directors  have  a  discretion  in  the  interest  of  the  public  and 
the  company  to  decide  where  stations  shall  be,  and  where  they  shall 
remain,  and  that  this  discretion  cannot  be  controlled  in  the  absence 
of  statutory  provision.  Such  uncontrollable  discretion  is  utterly  in- 
consistent with  the  existence  of  a  legal  duty  to  maintain  a  station  at 

8  See.  also,  Honolulu  R.  T.  Co.  v.  Hawaii,  211  U.  S.  282,  29  Sup.  Ct.  55,  53 
L.  Ed.  186  (1908).  Contra:  People  v.  Cliicago  &  A.  R.  Co.,  130  111.  175,  22  N. 
E.  857  (1888). 

In  Concord  &  Mont.  R,  R.  v.  B.  &  :M.  R.  Co..  67  N.  H.  465.  41  Atl.  263 
(1893),  the  court  held  that  it  could  determine  the  location  of  a  union  station, 
which  was  conceded  to  be  required  for  the  public  good. 


Ch.  2)  ADEQUACY   OF   SERVICE.  549 

a  particular  place,  a  breach  of  which  can  give  an  action  for  damages. 
If  the  directors  have  a  discretion  to  establish  and  discontinue  public 
stations,  a  fortiori  have  they  the  right  to  discontinue  switch  connec- 
tions to  private  warehouses.  The  switch  connection  and  transporta- 
tion over  it  may  seriously  interfere  with  the  convenience  and  safety 
of  the  public  in  its  use  of  the  road.  It  may  much  embarrass  the  gen- 
eral business  of  the  company.  It  is  peculiarly  within  the  discretion  of 
the  directors  to  determine  whether  it  does  so  or  not.  At  one  time  in 
the  life  of  the  company,  it  may  be  useful  and  consistent  with  all  the 
legitimate  purposes  of  the  company.  A  change  of  conditions,  an  in- 
crease in  business,  a  necessity  for  travel  at  higher  speed,  may  make 
such  a  connection  either  inconvenient  or  dangerous,  or  both.  We  must 
therefore  dissent  altogether  from  the  proposition  that  the  establish- 
ment and  maintenance  of  a  switch  connection  of  the  main  line  to  a 
private  warehouse  for  any  length  of  time  can  create  a  duty  of  the 
railroad  company  at  common  law  forever  to  maintain  it.  There  is 
little  or  no  authority  to  sustain  it. 

The  latest  of  the  Illinois  cases  which  are  relied  upon  is  based  upon 
a  constitutional  provision  which  requires  all  railroad  companies  to 
permit  connections  to  be  made  with  their  track,  so  that  the  consignee 
of  grain  and  any 'public  warehouse,  coal  bank,  or  coal  yard  may  be 
reached  by  the  cars  of  said  railroad.  The  supreme  court  of  that  state 
has  held  that  the  railroad  company  has  a  discretion  to  say  in  what 
particular  manner  the  connection  shall  be  made  with  its  main  track, 
but  that  this  discretion  is  exhausted  after  the  completion  of  the  switch 
and  its  use  without  objection  for  a  number  of  years.  Railroad  Co. 
V.  Suffern,  129  111.  374,  21  N.  E.  824.  But  this  is  very  far  from  hold- 
ing that  there  is  any  common-law  liability  to  maintain  a  side  track 
forever  after  it  has  once  been  established.  The  other  Illinois  cases 
(Vincent  v.  Railroad  Co.,  49  111.  33;  Chicago  &  N.  W.  Ry.  Co.  v. 
People,  56  111.  365,  8  Am.  Rep.  690)  may  be  distinguished  in  the  same 
way.  They  depended  on  statutory  obligations,  and  were  not  based 
upon  the  common  law,  though  there  are  some  remarks  in  the  nature 
of  obiter  dicta  which  gives  color  to  plaintiff's  contention.  But  it  will 
be  seen  by  reference  to  Mr.  Justice  Gray's  opinion,  already  quoted 
from,  that  the  Illinois  cases  have  exercised  greater  power  than  most 
courts  in  controlling  the  discretion  of  railroads  in  the  conduct  of  their 
business.    *    *    * 

The  recital  of  the  facts  in  the  petition  in  this  case  is  enough  to  show 
that  the  switch  connection  of  the  plaintiff  was  one  of  probable  or  pos- 
sible danger  to  the  public  using  the  railroad,  and  to  justify  its  termi- 
nation for  that  reason.  It  was  made  on  a  high  fill,  on  the  approach 
to  a  bridge  across  a  stream,  and  the  switch  track  ran  on  to  a  trestle 
15  feet  above  the  ground,  and  terminating^  in  the  air.  Even  if  the 
discretion  reposed  in  the  directors  to  determine  where  switch  con- 
nections shall  be  made  or  removed  were  one  for  the  abuse  of  which 
an  action  for  damages  would  lie,  the  petition  would  be  defective,  be- 


550  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

cause  it  does  not  attempt  in  any  way  to  negative  the  dangerous  char- 
acter of  the  switch  which  the  facts  stated  certainly  suggest  as  a  good 
ground  for  the  action  of  the  company  complained  of.     *     *     * 
The  judgment  of  the  Circuit  Court  is  affirmed,  with  costs. 


WEST  CHESTER  &  P.  R.  CO.  v.  TITLES. 

(Supreme  Court  of  Peuusylvauia,  1SG7.     55  Pa.  209,  93  Am.  Dec.  744.) 

Error  to  Court  of  Common  Pleas  of  Philadelphia. 

This  was  an  action  of  trespass,  brought  by  Alary  E.  Aliles  against 
the  West  Chester  &  Philadelphia  Railroad  Company  for  removing 
her  from  the  car  by  a  conductor  on  defendant's  railroad. 

Mary  E.  Miles,  a  colored  woman,  the  plaintiff,  got  into  the  car  of 
the  defendants  below,  at  Philadelphia,  to  go  to  Oxford,  and  took  a 
seat  at  or  near  the  middle  of  it.  A  rule  of  the  road  required  the  con- 
ductor to  make  colored  persons  sit  at  one  end  of  the  car.  He  got  a 
seat  for  her  at  the  place  fixed  by  the  rule,  and  asked' her  to  take  it. 
She  declined  positively  and  persistently  to  do  it.  The  conductor  told 
her  of  the  rule,  requested  her  to  take  the  other  seat,  warned  her  that 
he  must  require  her  to  leave  the  cars  if  she  refused,  and  at  last  put 
her  out.  There  was  no  allegation  that  any  force  was  used  greater  than 
was  necessary  to  accomplish  the  object  of  compelling  her  to  leave  the 
cars.     *     *     * 

Agxew,  J.^  It  is  admitted  no  one  can  be  excluded  from  carriage  by 
a  public  carrier  on  account  of  color,  religious  belief,  political  relations, 
or  prejudice.  But  the  defendants  in  their  point  asked  the  court  to  say 
that  if  the  jury  find  that  the  seat  which  the  plaintiff  was  directed  to 
take  was  in  all  respects  a  comfortable,  safe,  and  convenient  seat,  not 
inferior  in  any  of  these  respects  to  the  one  she  was  directed  to  leave, 
she  could  not  recover.  The  case,  therefore,  involves  no  assertion  of 
the  inferiority  of  the  negro  to  the  white  passenger;  but.  conceding 
his  right  to  be  carried  on  the  same  footing  with  the  white  man.  it  as- 
sumes it  to  be  not  unreasonable  to  assign  places  in  the  cars  to  passen- 
gers of  each  color.     *     *     * 

The  right  of  the  carrier  to  separate  his  passengers  is  founded  upon 
two  grounds — his  right  of  private  property  in  the  means  of  conveyance, 
and  the  public  interest.  The  private  means  he  uses  belong  wholly  to 
himself,  and  imply  the  right  of  control  for  the  protection  of  his  own 
interest,  as  well  as  the  performance  of  his  public  duty.  He  may  use 
his  property,  therefore,  in  a  reasonable  manner.  It  is  not  an  vmreason- 
able  regulation  to  seat  passengers  so  as  to  preserve  order  and  decorum, 
and  to  prevent  contacts  and  collisions  arising  from  natural  or  well- 
known  customary  repugnancies,  which  are  likely  to  breed  disturbances 

9  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


Ch.  2)  ADEQUACY    OF   SERVICE,  TjoI 

by  a  promiscuous  sitting.  This  is  a  proper  use  of  the  right  of  private 
property,  because  it  tends  to  protect  the  interests  of  the  carrier,  as 
well  as  the  interests  of  those  he  carries.  If  the  ground  of  regulation 
be  reasonable,  courts  of  justice  cannot  interfere  with  his  right  of  prop- 
erty. 

The  right  of  the  passenger  is  only  that  of  being  carried  safely,  and 
fwith  a  due  regard  to  his  personal  comfort  and  convenience,  which  are 
promoted  by  a  sound  and  well-regulated  separation  of  passengers. 
An  analogy  and  an  illustration  are  found  in  the  case  of  an  innkeeper, 
who,  if  he  have  room,  is  bound  to  entertain  proper  guests,  and  so  a 
carrier  is  bound  to  receive  passengers.  But  a  guest  in  an  inn  cannot 
select  his  room  or  his  bed  at  pleasure ;  nor  can  a  voyager  take  posses- 
sion of  a  cabin  or  a  berth  at  will,  or  refuse  to  obey  the  reasonable 
orders  of  the  captain  of  a  vessel.  But,  on  the  other  hand,  who  would 
maintain  that  it  is  a  reasonable  regulation,  either  of  an  inn  or  a  vessel, 
to  compel  the  passengers,  black  and  white,  to  room  and  bed  together? 
If  a  right  of  private  property  confers  no  right  of  control,  who  shall 
decide  a  contest  between  passengers  for  seats  or  berths?  Courts  of 
justice  may  interpose  to  compel  those  who  perform  a  business  con- 
cerning the  public,  by  the  use  of  private  means,  to  fulfill  their  duty  to 
the  public,  but  no  whit  beyond. 

The  public  also  has  an  interest  in  the  proper  regulation  of  public 
conveyances  for  the  preservation  of  the  public  peace.  A  railroad  com- 
pany has  the  right  and  is  bound  to  make  reasonable  regulations  to 
preserve  order  in  their  cars.  It  is  the  duty  of  the  conductor  to  repress 
tumults  as  far  as  he  reasonably  can,  and  he  may,  on  extraordinary 
occasions,  stop  his  train  and  eject  the  unruly  and  tumultuous.  But  he 
has  not  the  authority  of  a  peace  officer  to  arrest  and  detain  offenders. 
He  cannot  interfere  in  the  quarrels  of  others  at  will  merely.  In  order 
to  preserve  and  enforce  his  authority  as  the  servant  of  the  company 
it  must  have  a  power  to  establish  proper  regulations  for  the  carriage 
of  passengers.  It  is  much  easier  to  prevent  difficulties  among  passen- 
gers by  regulations  for  their  proper  separation,  than  it  is  to  quell 
them.     *     *     * 

By  uninterrupted  usage  the  blacks  live  apart,  visit  and  entertain 
among  themselves,  occupy  separate  places  of  public  worship  and 
amusement,  and  fill  no  civil  or  political  stations,  not  even  sitting  to 
decide  their  own  causes.  In  fact  there  is  not  an  institution  of  the  state 
in  which  they  have  mingled  indiscriminately  with  the  whites.  Even 
the  common  school  law  provides  for  separate  schools  when  their  num- 
bers are  adequate.  *  *  *  Following  these  guides,  we  are  com- 
pelled to  declare  that,  at  the  time  of  the  alleged  injury,  there  was  that 
natural,  legal,  and  customary  difference  between  the  white  and  black 
races  in  this  state  which  made  their  separation  as  passengers  in  a 
public  conveyance  the  subject  of  a  sound  regulation  to  secure  order, 
promote  comfort,  preserve  the  peace,  and  maintain  the  rights  both  of 


552  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

carriers  and  passengers.  The  defendants  were  therefore  entitled  to 
an  affirmative  answer  to  the  point  recited  at  the  beginning  of  this 
opinion.     *     *     * 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded.^** 

Re^\d,  J.,  dissents. 


JACKSON  ELECTRIC  RY.,  LIGHT  &  POWER  CO.  v.  LOWRY. 

(Supreme  Court  of  Mississippi,  1901.     79  Miss.  431,  30  South.  G34.) 

Calhoon,  J.^^  a  street  railroad  company  is  under  a  duty  to  the 
public  to  stop  at  regular  street  crossings,  on  a  seasonable  signal,  to  re- 
ceive those  desiring  to  take  passage.  It  cannot  avoid  this  duty  by  any 
practice  or  rules  of  its  own.  Booth,  St.  Ry.  Law,  §  347.  Its  rules 
must  be  reasonable,  and  an  absolute  contrary  rule  would  be  unreason- 
able. It  is  unreasonable  for  it  to  have  a  rule  that  where  its  cars  stop- 
ped beyond  the  crossing,  they  should  not  be  backed  to  the  proper 
place,  in  order  to  receive  the  person  signaling,  under  all  circumstances. 
Where  the  distance  is  short,  and  the  road  good,  and  no  inconvenience 
is  given  the  proposed  passenger,  it  is  not  meant  to  hold  that  such  a 
rule  might  not  be  held  proper.  But  it  is  highly  improper  for  it  to  be 
made,  or  obeyed,  to  apply  in  a  case  like  that  before  us.  Here  it  was  a 
rainy  night,  and  the  road  very  muddy,  and  the  stop  20  or  40  i eet  beyond 
the  brick  crossing,  and  the  passenger,  as  known  to  the  operatives,  would 
have  to  walk  seven  blocks  unless  he  got  passage. ^^     *     *     * 

10  Compare  McLain  v.  St.  Louis,  etc..  Co..  131  Mo.  App.  733.  Ill  S.  W.  835 
(1908).  in  absence  of  regulation,  a  passenger  need  not  chanee  his  seat  to 
suit  the  convenience  of  the  conductor ;  Ko\ye  v.  Brooklyn  Heights  R.  Co.,  80 
App.  Div.  477,  81  N.  Y.  Supp.  106  (1903),  employe  in  uniform,  oflt"  duty  and 
paying  fare,  is  entitled  to  ride  in  front  seat  when,  and  only  when,  no  reg- 
ulation forbids. 

11  The  statement  of  facts  and  part  of  the  opinion  have  been  omitted. 

12  "A  rule  that  baggage  shall  not  be  checked  until  a  ticket  has  been  pro- 
cured is  a  reasonable  regulation  to  prevent  imposition  upon  the  company. 
But  a  rule  that  a  baggage  master  shall  not  receive  baggage  into  the  bag- 
gage room  luitil  a  ticket  shall  have  lieen  procured,  if  there  be  such  a  rule, 
is  an  imposition  upon  the  public,  unreasonable  and  void.  It  would  require 
intending  passengers  to  care  for  their  own  baggage  in  many  situations  that 
may  readily  be  imagined,  where  to  do  so  would  be  entirely  impracticable." 
Whitfield.  J.,  in  Coffee  y.  L.  &  N.  R.  Co.,  76  Miss.  569,  25  South.  157,  45  L.  R. 
A.  112.  71  Am.  St.  Rep.  535  (1899). 

Compare  the  following  cases,  where  regulations  were  held  valid;  Central  of 
Ga.  Ry.  v.  Motes.  117  Ga.  923.  43  S.  E.  990.  62  L.  R.  A.  507.  97  Am.  St.  Rep. 
223  (190.3).  no  sleejung  in  waiting  room;  Phillips  v.  So.  Ry.  Co..  124  N.  C. 
123.  32  S.  E.  388.  45  L.  R.  A.  lt>3  (1899).  waiting  room  closetl  from  departure 
of  8  p.  m.  train  until  30  minutes  before  leaving  of  next  train  at  1:20  a.  m., 
though  "the  rule  would  probably  be  dififerent  in  the  case  of  through  passen- 
gers and  in  the  case  of  delayed  trains";  Funderburg  v.  Augusta,  etc.,  Ry. 
Co.,  81  S.  C.  141.  61  S.  E.  107.5,  21  L.  R.  A.  (N.  S.)  868  (1908).  street  car  con- 
ductor not  bound  to  change  $5.  See,  also.  Barker  v.  Cent.  Park  R.  Co..  151  N. 
Y.  237,  45  N.  E.  550.  35  L.  R.  A.  489.  56  Am.  St.  Rep.  626  (1896).  But  see 
BaiTett  V.  Market  St.  Ry.  Co.,  81  Cal.  296,  22  Pac.  859,  6  L.  R.  A.  336,  15 


Ch.    2)  ADEQUACY   OF   SERVICE.  553 


BIRMINGHAM  RY.,  LIGHT  &  POWER  CO.  v.  McDONOUGH. 

(Supreme  Court  of  Alabama,  1907.    153  Ala.  122,  44  South.  900,  13  L.  R.  A.  [X. 
S.]  445,  127  Am.  St.  Rep.  18.) 

Action  for  ejecting  plaintiff  from  a  street  car.  Defendant  pleaded 
that  it  was  operating  a  motor  car  with  a  "trailer"  attached ;  that  plain- 
tiff, having  taken  passage  on  the  motor  car  and  paid  fare  to  its  con- 
ductor, went  into  the  trailer,  and  refused  to  return  to  the  motor  car 
or  to  pay  fare  to  the  conductor  of  the  trailer,  though  notified  of  de- 
fendant's reasonable  rule  that  a  passenger  who  changed  cars  must  pay 
fare  on  the  second  car.  Wherefore  he  was  ejected  without  unneces- 
sary violence.     Plaintiff's  demurrer  to  the  plea  was  sustained. 

Denson,  J. ^2  *  *  *  It  is  settled  law  in  this  jurisdiction,  as  it  is 
elsewhere,  that  a  common  carrier  of  passengers  is  clothed  with  a  com- 
mon-law right  to  make  reasonable  rules  and  regulations  for  the  con- 
duct of  his  or  its  business ;  further,  that  the  reasonableness  or  not  of  a 
given  rule  is  a  question  of  law  for  the  court,  and  not  one  of  fact  to  be 
determined  by  the  jury.  6  Cyc.  545  (C),  and  authorities  in  note  63  to 
the  text ;  Pullman  Car  Co.  v.  Kraiiss,  145  Ala.  395,  40  South.  398,  4 
Iv.  R.  A.  (N.  S.)  103,  and  authorities  there  cited. 

The  question,  then,  is  the  reasonableness  vel  non  of  the  rule  set  up 
in  the  plea.  It  may  be  said  to  be  common  knowledge  that  street  cars 
in  the  city  of  Birmingham  are  usually  crowded — at  least,  that  they 
are  frequently  so.  Therefore  the  conductor  is  not  presumed  to  know 
all  of  his  passengers.  He  must  necessarily  be  a  stranger  to  a  large 
portion  of  them,  and  not  acquainted  with  their  character  for  truthful- 
ness. If  passengers  are  allowed,  and  have  the  privilege  of  boarding 
one  car  and  moving  from  that  to  another  car — the  two  being  coupled 
together,  as  the  plea  in  this  instance  shows  the  cars  were  joined — it 
would  be  a  very  easy  matter  for  a  passenger  to  board  one  car  and 
move  to  the  other,  and  claim,  when  called  upon  for  his  fare,  that  he 
had  paid  on  the  other  car,  when  in  truth  he  had  not ;  and  the  dift'erent 
conductor  could  have  no  means  of  knowing  that  the  moving  passenger 
had  paid  fare.     *     *     * 

Again,  as  is  suggested  in  brief  of  appellant's  counsel,  it  is  common 
knowledge  that  conductors  are  required  to  "register  up"  each  fare  col- 
lected in  their  proper  cars,  and  are  required  to  collect  from  and  reg- 
ister each  passenger  on  each  car.  This  check  on  the  conductors 
would  be  rendered  valueless  if  passengers  were  allowed  to  change 
from  one  car  to  another — each  car  having  a  separate  conductor — with- 
out paying  fare.     We  are  of  the  opinion,  and  so  hold,  that  the  rule 

Am.  St.  Rep.  61  (1889);  Montgomery  v.  Buffalo  Ry.  Co.,  165  N.  Y.  139,  58  N. 
E.  770  (1900),  no  standing  on  platform  of  street  car,  though  passenger  has 
sick  headache  and  Is  likely  to  vomit. 

13  The  statement  of  facts  is  based  on  facts  stated  in  the  opinion.  Farts  of 
the  opinion  are  omitted. 


554  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

pleaded  is  a  reasonable  one,  in  the  proper  conduct  of  the  business  of 
the  defendant,  and  necessary  to  protect  it  against  imposition.     *     *     * 

The  insistence  that  the  plea  is  bad,  for  that  it  fails  to  aver  knowl- 
edge of  the  rule  on  the  part  of  the  plaintiff  before  he  boarded  the  car 
from  which  he  was  ejected,  is  not  sound.  The  plea  avers  that  plain- 
tiff was  advised  of  the  rule  before  he  was  ejected  and  that  he  might 
return  to  the  motor  car.  In  view  of  this  averment,  it  was  not  neces- 
sary that  he  should  have  had  knowledge  of  the  rule  before  he  boarded 
the  car.     *     *     * 

Reversed  and  remanded.^* 


FORSEE  V.  ALABAMA  GREAT  SOUTHERN  R.  CO. 

(Supreme  Court  of  Mississippi,  1885.     63  Miss.  G6,  56  Am.  Rep.  801.) 

Plaintiff  boarded  defendant's  train  at  a  way  station  and  tendered 
the  conductor  35  cents,  which  was  the  regular  fare  to  his  destination, 
saying  that  he  had  been  unable  to  get  a  ticket  at  the  station,  because 
the  ticket  agent  was  not  on  hand.  The  conductor  would  not  take  the 
money,  explaming  that  his  instructions  required  him  to  collect  50 
cents  from  passengers  without  tickets.  On  plaintiff's  refusal  to  pay 
more,  the  conductor  stopped  the  train,  seized  the  plaintiff,  and  was 
about  to  eject  him,  when  he  paid  50  cents  under  protest.  This  action 
is  brought  to  recover  for  the  neglect  and  wrongful  conduct  of  the 

1*  Compare  Laslver  v.  Third  Ave.  R,  Co.,  ante,  p.  4f>. 

In  Ketchum  v.  X.  Y.  City  Ry.  Co.,  118  App.  Div.  248,  103  X.  Y.  Supp.  48(1 
(1907),  a  statute  reciuired  the  company  to  give  a  transfer  on  demand  to  eaoh 
passenger  paying  a  fare.  A  regulation  conspicuously  posted  and  advertised, 
refusing  transfers  unless  aslced  for  when  fare  was  paid,  was  held  valid, 
though  milinown  to  the  passenger ;  but  where  not  posted  or  advertisetl,  such 
a  regulation  was  held  invalid.  McGowan  v.  X.  Y.  City  Ry.  Co.  (Sup.)  99  X. 
Y.  Supp.  83.5  (1906).  A  regulation,  unknown  to  the  holder,  that  a  ticket 
shall  be  good  only  for  travel  by  direct  route,  has  been  held  not  to  deprive  hira 
of  a  right  to  travel  on  it  by  a  usual,  though  longer,  route.  111.  Cent.  R.  Co.  v. 
Harper,  83  Miss.  560,  35  South.  764,  64  L.  R.  A.  283.  102  Am.  St.  Rep.  469 
(1901).  So  of  a  regulation  restricting  the  use  of  a  ticket  to  the  day  of  sale, 
posted  in  stations,  but  unknown  to  the  purchaser.  Ga.  R.  Co.  v.  Baldoni,  115 
Ga.  1013.  42  S.  E.  364  (1902).  Or  ])rinted  as  a  condition  on  the  ticket,  even 
though  discovered  before  use.  Dagnall  v.  So.  Ry.  Co.,  69  S.  C.  110,  48  S.  E. 
97  (1903). 

A  railroad  company  may  by  regulation  require  a  passenger  who  has  a 
ticket  to  show  it  before  entering  the  train.  111.  Cent.  R.  Co.  v.  Louthan.  SO 
111.  App.  579  (1898);  to  show  it  at  reasonable  intervals  to  the  conductor, 
Hibbard  v.  X.  Y.  &  E.  R.  Co.,  15  X.  Y.  4.55  (1857);  and  to  surrender  it  before 
reaching  his  station,  Yedder  v.  Fello\A-s,  20  X".  Y.  126  (1859).  It  may  refuse 
to  accept  a  transfer  check,  unless  the  passenger  enters  at  the  transfer  sta- 
tion. Xashville  St.  Ry.  v.  Griffin,  104  Tenn.  81,  57  S.  W.  1.53,  49  L.  R.  A. 
451  (1900).  It  may  refuse  to  permit  a  passenger  not  known  to  have  paid 
fare  to  pass  the  conductor  when  collecting  tickets.  Faber  v.  Chicago  Gt.  W. 
Co.,  62  Minn.  433,  64  X.  W.  918,  36  L.  R.  A.  789  (1895).  In  Sickles  v.  Brook- 
lyn Heights  R.  Co.,  113  App.  Div.  680,  99  X.  Y.  Supp.  953  (1906),  a  rule  which 
required  a  passenger  passing  through  the  turnstile  a  second  time  to  pay  a 
second  fare  was  held  valid  as  applied  to  a  passenger  recognized  as  one  who, 
with  knowledge  of  the  rule,  had  given  notice  that  he  was  going  back  to 
search  for  a  lost  paper. 


Ch.  2)  ADEQUACY   OF   SERVICE.  555 

railroad  company's  agents.  The  trial  court  excluded  evidence  tend- 
ing to  show  that,  through  the  ticket  agent's  neglect  of  duty,  plaintiff 
had  been  unable  to  get  a  ticket.  Plaintiff  had  a  verdict  and  judgment 
for  $50,  without  costs.    Plaintiff  appealed. 

Arnold,  J.^^  *  *  *  It  is  competent  for  a  railroad  corporation 
to  adopt  reasonable  rules  for  the  conduct  of  its  business,  and  to  de- 
termine and  fix,  within  the  limits  specified  in  its  charter  and  existing 
laws,  the  fare  to  be  paid  by  passengers  transported  on  its  trains.  It 
may,  in  the  exercise  of  this  right,  make  discrimination  as  to  the  amount 
of  fare  to  be  charged  for  the  same  distance,  by  charging  a  higher  rate 
when  the  fare  is  paid  on  the  train  than  when  a  ticket  is  purchased  at 
its  office.  Such  a  regulation  has  been  very  generally  considered  rea- 
sonable and  beneficial  both  to  the  public  and  the  corporation,  if  carried 
out  in  good  faith.  It  imposes  no  hardship  or  injustice  upon  passen- 
gers, who  may,  if  they  desire  to  do  so,  pay  their  fare  and  procure  tick- 
ets at  the  lower  rate  before  entering  the  cars,  and  it  tends  to  protect 
the  corporation  from  the  frauds,  mistakes,  and  inconvenience  incident 
to  collecting  fare  and  making  change  on  trains  while  in  motion,  and 
from  imposition  by  those  who  may  attempt  to  ride  from  one  station 
to  another  without  payment,  and  to  enable  conductors  to  attend  to  the 
various  details  of  their  duties, on  the  train  and  at  stations.  State  v. 
Goold,  53  Me.  279 ;  Jeffersonville  Railroad  Co.  v.  Rogers,  28  Ind.  1, 
92  Am.  Dec.  276 ;  Swan  v.  Manchester,  etc..  Railroad  Co.,  132  Mass. 
116,  42  Am.  Rep.  432. 

But  such  a  regulation  is  invalid,  and  cannot  be  sustained,  unless  the 
corporation  affords  reasonable  opportunity  and  facilities  to  passengers 
to  procure  tickets  at  the  lower  rate,  and  thereby  avoid  the  disadvantage 
of  such  discrimination.  When  this  is  done,  and  a  passenger  fails  to 
obtain  a  ticket,  it  is  his  own  fault,  and  he  may  be  ejected  from  the 
train  if  he  refuses  to  pay  the  higher  rate  charged  on  the  train. 

When  such  a  regulation  is  established,  and  a  passenger  endeavors  to 
buy  a  ticket  before  he  enters  the  cars,  and  is  unable  to  do  so  on  account 
of  the  fault  of  the  corporation  or  its  agents  or  servants,  and  he  offers 
to  pay  the  ticket  rate  on  the  train,  and  refuses  to  pay  the  car  rate,  it  is 
unlawful  for  the  corporation  or  its  agents  or  servants  to  eject  him  from 
the  train.  He  is  entitled  to  travel  at  the  lower  rate,  and  the  corpora- 
tion is  a  trespasser  and  liable  for  the  consequences  if  he  is  ejected  from 
the  train  by  its  agents  or  servants.  The  passenger  may,  under  such 
circumstances,  either  pay  the  excess  demanded  under  protest,  and 
afterwards  recover  it  by  suit,  or  refuse  to  pay  it,  and  hold  the  corpora- 
tion responsible  in  damages  if  he  is  ejected  from  the  train.  1  Redfield 
on  Railways,  104;  Evans  v.  M.  &  C.  Railroad  Co.,  56  Ala.  246,  28  Am. 
Rep.  771 ;  St.  Louis,  etc..  Railroad  Co.  v.  Dalby,  19  111.  353  ;  St.  Lours, 
etc..  Railroad  Co.  v.  South,  43  111.  176,  92  Am.  Dec.  103;    Smith  v. 

15  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion 
omitted. 


556  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

Pittsburg,  etc.,  Railroad  Co.,  23  Ohio  St.  10 ;  Porter  v.  N.  Y.  Central 
Railroad  Co.,  34  Barb.  (N.  Y.)  353;  Jeffersonville  Railroad  Co.  v. 
Rogers,  28  Ind.  1,  92  Am.  Dec.  276;  Jefferson  Railroad  Co.  v.  Rogers, 
38  Ind.  116,  10  Am.  Rep.  103;  State  v.  Goold,  53  Me.  279;  Swan  v. 
Manchester,  etc..  Railroad  Co.,  132  Mass.  116,  42  Am.  Rep.  432 ;  Du 
Laurans  v.  St.  Paul,  etc.,  Railroad  Co.,  15  Minn.  49  (Gil.  29)  2  Am. 
Rep.  102.     *     *     * 

The  cause  was  tried  in  the  court  below  on  theories  and  principles 
of  law  different  from  those  here  expressed,  and  the  judgment  is  re- 
versed and  a  new  trial  awarded. 

Reversed.^* 


MONNIER  V.  NEW  YORK  CENT.  &  H.  R.  R.  CO. 

(Court  of  Appeals  of  New  York,  1903.     175  N.  Y.  281,  67  N.  E.  569,  62  U  R. 
A.  357,  90  Am.  St,  Rep.  619.) 

O'Brien,  J.^^  The  plaintiff  has  recovered  damages  for  an  assault 
and  battery  committed  upon  his  person  by  one  of  the  defendant's  con- 
ductors on  the  16th  day  of  November,  1900,  when  the  plaintiff  was  in 
one  of  the  defendant's  cars  as  a  passenger  from  Oriskany  to  Utica. 
There  is  little,  if  any,  dispute  about  the  facts.     *     *     * 

The  rule  of  the  company  that  required  the  conductor  to  collect  19 
cents  from  the  passenger  who  did  not  purchase  a  ticket  is  concededly 
a  valid  and  reasonable  regulation.  It  is  sanctioned  by  the  terms  of  an 
express  statute,  and  the  duty  of  the  conductor  was  to  enforce  it,  and 
therefore  it  was  the  duty  of  the  passenger  to  submit  to  it.  A  person 
who  becomes  a  passenger  in  a  public  conveyance  must  subordinate  his 
conduct  to  all  rules  that  are  reasonable  and  valid.  Without  such  rules 
the  corporation  will  not  be  able  to  perform  the  functions  for  which  it 
was  created. 

In  the  present  case  no  one  questions  these  propositions,  but  what  is 
asserted  in  behalf  of  the  plaintiff  is  that,  behind  these  reasonable  regu- 
lations there  was  a  fact  which  rendered  them  inoperative  or  inappli- 
cable to  him,  and  tha^t  was  the  fact  that  the  ticket  agent  was  not  in  his 
ofifice  when  the  train  started,  and  in  consequence  of  his  absence  the 
plaintiff  was  unable  to  procure  a  ticket.     But  the  conductor  could  not 

16  Ace.  Amnions  v.  Railway,  138  N.  C.  555.  51  S.  E.  127  (190.5). 

A  condition  in  a  valid  ticket  that  the  passenger,  if  its  validity  is  disputed, 
shall  pay  fare  and  apply  at  the  company's  office  for  a  refund,  has  been  held 
unavailing  to  deprive  him  of  his  right  to  be  caiTied  on  the  ticket,  though 
its  validity  is  disputed  in  good  faith.  O'Rourke  v.  Citizens'  St.  Ry.  Co..  103 
Tenn.  124,  52  S.  W.  872,  46  L.  R.  A.  61-4,  76  Am.  St.  Rep.  639  (1899);  Cherry 
V.  Railroad,  191  Mo.  489,  90  S.  W.  381,  2  L.  R.  A.  (N.  S.)  695,  109  Am.  St.  Rep. 
830  (1905);  Ga.  Ry.  Co.  v.  Baker,  125  Ga.  562,  54  S.  E.  639,  7  L.  R.  A.  (N.  S.) 
103,  114  Am.  St.  Rep.  240  (1906).  So  of  a  rule  requiring  holder  of  ticket  to 
present  it  on  request  at  the  ticket  receiver's  otfice  for  investigation  before 
entering  train.  No.  Cent.  Ry.  Co.  v.  O'Conner,  76  Md.  207,  24  Atl.  449,  16  L.. 
R.  A.  449.  35  Am.  St.  Rep.  422  (1892). 

17  Parts  of  the  opinion  are  omitted. 


■Ch.  2)  ADEQUACY    OF   SERVICE.  557 

know  what  the  fact  was  in  that  respect,  and  was  not  bound  to  take  the 
passenger's  word  for  it ;  nor  could  he  try  and  decide  the  question  up- 
on the  word  of  the  other  passengers  who  procured  tickets  at  the  same 
station.  The  simple  duty  of  the  conductor  is  to  execute  and  enforce 
all  reasonable  rules,  and  that  of  the  passenger  is  to  obey  them.  If 
there  is  some  fact  or  omission  behind  the  rules,  not  apparent  upon  the 
face  of  the  transaction,  the  passenger  must  resort  to  some  other  remedy 
for  his  grievance  besides  the  use  of  force  against  the  conductor;  and 
if,  under  such  circumstances  he  invites  a  personal  collision  with  the 
officer  in  charge  of  the  train,  resulting  in  his  forcible  expulsion,  he  puts 
himself  in  the  wrong,  and  cannot  sue  the  company  or  the  officer  for 
assault  and  battery. 

In  this  c&se  the  plaintiff  acted  upon  the  principle  that  if  he  could 
ultimately  prove  that  the  ticket  office  was  not  open  when  the  train 
started,  and  that  he  could  not  procure  a  ticket,  he  had  the  right  to 
refuse  to  pay  the  19  cents,  and  to  resist  the  conductor  by  force  when 
he  attempted  to  put  him  off.  It  would  be  difficult  to  show  that  such  a 
principle  has  any  support  in  reason,  justice,  or  authority.     *     *     * 

It  would  be  an  absurd  and  intolerable  rule  of  law  that  would  permit 
passengers  upon  a  railroad  to  resist  the  officer  in  charge  whenever  a 
dispute  arose  in  regard  to  some  trivial  matter  wherein  the  passenger 
had  a  real  or  fancied  grievance.  When  the  plaintiff  was  told  that  he 
must,  under  the  rules,  pay  the  19  cents  or  leave  the  car,  it  was  his 
duty  either  to  pay  the  extra  4  cents,  or  leave,  and  resort  to  the  remedy 
which  the  law  gave  for  the  redress  of  his  grievance.  The  conductor 
could  not  suspend  the  rule  merely  because  he  was  told  that  the  passen- 
ger could  not  procure  a  ticket  before  the  train  started,  and.  when  noti- 
fied by  the  conductor  that  removal  from  the  train  must  follow  his  re- 
fusal to  pay,  he  had  notice  of  the  rule  and  the  consequence  of  his 
disobedience  to  it.  When  he  waited  for  the  application  of  force  to  re- 
move him,  he  did  so  in  his  own  wrong.  He  virtually  invited  all  the 
force  necessary  to  remove  him,  and,  since  no  more  was  applied  than 
was  necessary  to  effect  the  object,  he  cannot  recover,  either  against 
the  conductor  or  the  defendant  in  an  action  for  assault  and  battery. 
Townsend  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  56  N.  Y.  295,  15  Am.  Rep.  419. 

No  case  has  been  cited  that  sustains  the  proposition  contended  for 
by  the  learned  counsel  for  the  plaintiff,  and  that  is  that  the  plaintiff 
had  the  right  to  resist  the  conductor  by  force,  on  the  ground  that  he 
was  unable  to  procure  a  ticket.  *  *  *  The  cases  in  other  juris- 
dictions are  to  the  effect  that  in  a  case  like  this  the  passenger  must 
submit  to  the  inconvenience  of  either  paying  the  fare  demanded  or 
ejection,  and  rely  upon  his  remedy  against  the  company  for  the  neg- 
ligence or  mistake  of  the  ticket  agent.  The  conductor  cannot  decide, 
from  the  statement  of  the  passenger  or  his  neighbors,  what  the  facts 
are  which  may  affect  the  operation  of  the  rules.  This  would  require 
more  time  than  the  conductor  can  find  in  the  proper  discharge  of  his 
duties,   and   would   expose   the   company  to   numerous   and   constant 


558  THE   COMMON    CARRIER'S    DUTY    TO  SERVE.  (Part  5 

frauds.  Bradshaw  v.  Railroad,  135  Mass,  407,  46  Am.  Rep.  481 ; 
Frederick  v.  Railroad  [ante,  p.  315]  ;  Shelton  v.  Railroad,  29  Ohio  St. 
214;  Dietrich  v.  Railroad  Co.,  71  Pa.  432,  10  Am.  Rep.  711;  Railroad 
Co.  V.  Griffin,  68  111.  499 ;  Pouilin  v.  Can.  Pac.  Ry.  Co.,  52  Fed.  197,  3 
C.  C.  A.  23,  17  L.  R.  A.  800 ;  Hall  v.  M.  &  C.  R.  R.  Co.  (C.  C.)  15  Fed. 
57;  Wiggins  V.  King,  91  Hmi,  343,  36  N.  Y.  Supp.  768.     *     *     * 

The  law  imposes  upon  the  individual  the  duty  of  obedience,  under 
all  circumstances,  to  lawful  authority,  and  if,  underlying  the  authority, 
there  may  be  a  question  of  fact  which  renders  the  exercise  of  it  un- 
lawful, it  is  not  for  the  party  himself  to  decide  that  question,  and  resort 
to  violence  or  forcible  resistance.  The  remedy  is  to  appeal  to  the  regu- 
lar tribunals  for  the  redress  of  any  wrong  or  injury  that  he  may  have 
sustained  in  consequence  of  his  enforced  obedience  to  the  regulation 
which  he  claims  was  not,  for  some  reason,  applicable  to  him  under  the 
circumstances. 

We  have,  of  course,  no  reference  here  to  cases  where  personal  rights 
or  privileges  may  be  invaded  without  jurisdiction  or  warrant  of  law, 
but  to  cases  that  in  some  sense  are  analogous  to  that  of  an  officer  who 
is  called  upon  to  execute  process  regular  upon  its  face,  though  behind 
the  process  there  may  be  some  fact  which  would  justify  the  decision 
that  it  was  absolutely  void.  In  such  cases  the  individual  affected  must, 
for  the  time  being,  yield  to  the  process  and  resort  to  proper  proceed- 
ings to  set  it  aside  or  to  redress  the  injury. 

For  these  reasons  I  think  the  judgment  should  be  reversed,  and  a 
new  trial  granted ;  costs  to  abide  the  event. 

BARTI.ETT,  J.  (dissenting).  *  *  *  jf  plaintiff  failed  to  purchase 
a  ticket  before  entering  the  train,  opportunity  having  been  afforded 
him  to  do  so,  he  was  liable  to  pay  the  statutory  penalty  of  extra  fare, 
and,  refusing  to  do  so,  his  ejection  from  the  train  was  proper.  On 
the  other  hand,  if  the  defendant,  by  its  act,  rendered  it  impossible  for 
the  plaintiff  to  procure  a  ticket,  his  ejection  from  the  train  was  wrong- 
ful, and  this  action  lies.  The  argument  on  behalf  of  the  defendant 
and  appellant  is,  in  brief,  that  the  plaintiff  should  have  paid  the  extra 
fare  penalty,  or  left  the  train  when  requested  to  do  so  by  the  con- 
ductor, relying  in  either  event  upon  his  legal  remedy ;  that  the  violence 
and  indignity  visited  upon  the  plaintiff  were  of  his  own  seeking,  and 
he  cannot  recover  damages  therefor.  This  is  not  the  law.  The  plain- 
tiff and  defendant  were  each  bound  in  the  emergency  to  determine  the 
character  of  his  or  its  legal  rights,  as  it  frequently  happens  that  parties 
drifting  into  a  legal  controversy  are  driven  to  decide  this  question  at 
their  peril.     *     *     * 

Parker,  C.  J.,  and  HaighT  and  Cullen,  J  J.  (in  a  separate  opinion), 
concur  with  O'Brien,  J.    Martin  and  Vann,  ]].,  concur  with  Bart- 

LETT,  J. 

Judgment  reversed.^® 
18  See  ante,  pp.  227-228. 


Ch.  3)  CHARGES  FOR  SERVICE.  559 

CHAPTER  III 
CHARGES  FOR  SERVICE 


White,  J.,  in  TEXAS  &  PACIFIC  RY.  CO.  v.  ABILENE  COT- 
TON OIL  CO.,  204  U.  S.  426,  436,  27  Sup.  Ct.  350,  51  L.  Ed.  553 
(1907) :  "Without  going  into  detail,  it  may  not  be  doubted  that  at  com- 
mon law,  where  a  carrier  refused  to  receive  goods  offered  for  carriage 
except  upon  the  payment  of  an  unreasonable  sum,  the  shipper  had  a 
right  of  action  in  damages.  It  is  also  beyond  controversy  that  when  a 
carrier  accepted  goods  without  payment  of  the  cost  of  carriage  or  an 
agreement  as  to  the  price  to  be  paid,  and  made  an  unreasonable  exaction 
as  a  condition  of  the  delivery  of  the  goods,  an  action  could  be  main- 
tained to  recover  the  excess  over  a  reasonable  charge.  And  it  may  fur- 
ther be  conceded  that  it  is  now  settled  that  even  where,  on  the  receipt 
of  goods  by  a  carrier,  an  exorbitant  charge  is  stated,  and  the  same  is 
coercively  exacted  either  in  advance  or  at  the  completion  of  the  serv- 
ice, an  action  may  be  maintained  to  recover  the  overcharge."  ^ 

1  This  "was  an  action  begun  in  a  state  court  to  recover  for  an  excessive 
freight  charge  exacted  on  an  interstate  shipment.  The  court  gave  judgment 
for  the  plaintiff  on  a  finding  that  tlie  charge  was  inireasonable,  although  it 
was  the  rate  specified  in  the  schedule  filed  and  posted  by  the  carrier  as  re- 
quired by  the  interstate  commerce  act  (Act  Feb.  4,  1SS7.  c.  104,  24  Stat.  371) 
[U.  S.  Comp.  St.  1901,  p.  31.54]).  Section  1  of  the  act  forbids  an  unreason- 
able charge.  Section  6  forbids  a  different  charge  from  that  contained  in  the 
schedule.  Other  sections  forbid  discrimination  and  undue  preference,  and 
provide  that  persons  damaged  by  a  violation  of  the  statute  may  proceed  at 
their  election  before  the  Interstate  Commerce  Commission  in  a  specified 
mode,  or  before  a  District  or  Circuit  Court  of  the  United  States,  and  that 
nothing  therein  contained  shall  abridge  existing  remedies  at  common  law. 
The  United  States  Supreme  Court  reversed  the  judgment.  White,  J.,  said: 
"  *  *  *  If  it  be  that  the  standard  of  rates  fixed  in  the  mode  provided  by 
the  statute  could  be  treated  on  the  complaint  of  a  shipper  by  a  court  and 
jury  as  unreasonable,  without  reference  to  prior  action  by  the  Commission, 
finding  the  established  rate  to  be  unreasonable  and  ordering  the  carrier  to 
desist  in  tlie  future  from  violating  the  act,  it  would  come  to  pass  that  a  ship- 
per might  obtain  relief  upon  the  basis  that  the  established  rate  was  unrea- 
sonable in  the  opinion  of  a  court  and  jury,  and  thus  such  shipper  would  re- 
ceive a  preference  or  discrimination  not  enjoyed  by  those  against  whom  the 
schedule  of  rates  was  continued  to  be  enforced.  *  *  *  Equally  obvious  is 
it  that  the  existence  of  such  a  power  in  the  courts,  independent  of  prior  ac- 
tion by  the  Commission,  would  lead  to  favoritism,  to  the  enforcement  of 
one  rate  in  one  jurisdiction  and  a  different  one  in  another,  would  destroy 
the  prohibitions  against  preferences  and  discrimination,  and  afford,  more- 
over, a  ready  means  by  which,  through  collusive  proceedings,  the  wrongs 
which  the  statute  intended  to  remedy  could  be  successfully  inflicted.  *  *  * 
If  the  power  existed  in  both  courts  and  the  Commission  to  originally  hear 
complaints  on  this  subject,  there  might  be  divergence  between  the  action  of 
the  Commission  and  the  decision  of  a  court.  In  other  words,  the  establishetl 
schedule  might  be  found  reasonable  by  the  Commission  in  the  first  instance 
and  unreasonable  by  a  court  acting  originally,  and  thus  a  conflict  would 
arise  which  would  render  the  enforcement  of  the  act  impossible." 


560  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

CANADA  SOUTHERN  RY.  CO.  v.  INTERNATIONAL 
BRIDGE  CO. 

(Privy  Council,  1883.     L.  R.  8  App.  Cas.  723.) 

Appeal  from  a  decree  declaring  the  bridge  company  entitled  to  col- 
lect tolls  from  the  railway  company  for  the  use  of  its  bridge  across 
the  Niagara  river  at  the  rates,  fixed  by  its  directors,  of  10  cents  for 
each  passenger,  and  $1.00  for  each  loaded  freight  car,  with  certain 
other  sums  for  other  cars.^ 

The  Lord  Chancellor  (Earl  of  Selcorne),  after  deciding  that  no 
statute  imposed  on  the  right  to  fix  tolls  "any  limit  other  than  such,  if 
any,  as  might  be  implied  by  law,  namely,  that  the  charges  should  not 
be  unreasonable,"  continued : 

*  *  "^  It  certainly  appears  to  their  Lordships  that  the  principle 
must  be,  when  reasonableness  comes  in  question,  not  what  profit  it 
may  be  reasonable  for  a  company  to  make,  but  what  it  is  reasonable 
to  charge  to  the  person  who  is  charged.  That  is  the  only  thing  he  is 
concerned  with.  They  do  not  say  that  the  case  may  not  be  imagined 
of  the  results  to  a  company  being  so  enormously  disproportionate  to 
the  money  laid  out  upon  the  undertaking  as  to  make  that  of  itself 
possibly  some  evidence  that  the  charge  is  unreasonable,  with  reference 
to  the  person  against  whom  it  is  charged.  But  that  is  merely  imagi- 
nary. Here  we  have  got  a  perfectly  reasonable  scale  of  charges  in 
■everything  which  is  to  be  regarded  as  material  to  the  person  against 
whom  the  charge  is  made. 

One  of  their  Lordships  asked  counsel  at  the  bar  to  point  out  which 
of  these  charges  were  unreasonable.  It  was  not  found  possible  to  do 
so.  In  point  of  fact,  every  one  of  them  seems  to  be,  when  examined 
with  reference  to  the  service  rendered  and  the  benefit  to  the  person 
receiving  that  service,  perfectly  unexceptionable,  according  to  any 
standard  of  reasonableness  which  can  be  suggested.  That  being  so, 
it  seems  to  their  Lordships  that  it  would  be  a  very  extraordinary  thing 
indeed,  unless  the  Legislature  had  expressly  said  so,  to  hold  that  the 
persons  using  the  bridge  could  claim  a  right  to  take  the  whole  accounts 
of  the  company,  to  dissect  their  capital  account,  and  to  dissect  their 
income  account,  to  allow  this  item  and  disallow  that,  and,  after  manipu- 
lating the  accounts  in  their  own  way,  to  ask  a  court  to  say  that  the  per- 
sons who  have  projected  such  an  undertaking  as  this,  who  have  en- 
countered all  the  original  risks  of  executing  it,  who  are  still  subject 
to  the  risks  which  from  natural  and  other  causes  every  such  undertak- 
ing is  subject  to,  and  who  may  possibly,  as  in  the  case  alluded  to  by 
the  learned  judge  in  the  court  below,  the  case  of  the  Tay  Bridge,  have 
the  whole  thing  swept  away  in  a  moment,  are  to  be  regarded  as  mak- 
ing unreasonable  charges,  not  because  it  is  otherwise  than  fair  for  the 

2  The  statement  of  facts  lias  been  rewritten. 


Ch.  3)  CHARGES   FOR    SERVICE.  5G1 

railway  company  using  the  bridge  to  pay  those  charges,  but  because 
the  bridge  company  gets  a  dividend  which  is  alleged  to  amount,  at  the 
utmost,  to  fifteen  per  cent.  Their  Lordships  can  hardly  characterize 
that  argument  as  anything  less  than  preposterous. 

Their  Lordships  will,  therefore,  humbly  advise  Her  Majesty  that 
the  judgment  of  the  Court  of  Appeal  of  the  Province  of  Ontario  should 
be  affirmed,  and  both  these  appeals  dismissed,  with  costs.^ 


TIFT  V.  SOUTHERN  RY.  CO. 

(Circuit  Court,  W.  D.  Georgia,  1905.     13S  Fed.  753.) 

Bill  in  equity  by  persons  composing  the  Georgia  Sawmill  Association 
for  an  injunction  restraining  the  defendant  railroad  companies  from 
inaugurating  or  maintaining  a  published  advance  of  two  cents  a  hun- 
dred pounds  in  freight  rates  on  lumber  from  points  in  Georgia  to  points 
on  the  Ohio  river  and  beyond.  The  injunction  was  asked  for  on  the 
ground  that  the  advance  would  violate  the  act  to  regulate  commerce 
and  cause  irreparable  injury  to  complainants.*    A  temporary  injunction 

3  See,  also,  Brewer,  J.,  in  Cotting  v.  Kansas  City  Stockyards  Co.,  1S3  U. 
S.  79,  22  Sup.  Ct.  30,  46  L.  Ed.  92  (1901).  Compare  Beale  &  Wyman,  Rail- 
road Rate  Reg.  §§  520,  521. 

4  Ttie  "Act  to  regulate  commerce,"  commonly  called  tlie  "interstate  com- 
merce act"  (Act  Feb.  4,  1887,  c.  104,  24  Stat.  379  [Comp.  St.  1901,  p.  3154]), 
recites  in  substance  that  its  proyisions  shall  apply  to  common  carriers  car- 
rying by  railroad  goods  or  passengers  within  the  United  States  in  interstate, 
foreign,  or  territorial  commerce,  and  to  certain  other  similar  carriage.  It  in- 
cludes the  following  proyisions: 

"Section  i.  *  *  *  au  charges  made  for  any  seryice  rendered  or  to  be 
rendered  in  the  transportation  of  passengers  or  property  as  aforesaid,  or  in 
connection  therewith,  or  for  the  receiying,  deliyering,  storage,  or  handling  of 
such  property,  shall  be  rea*sonable  and  just ;  and  every  unjust  and  unrea- 
sonable charge  for  such  seryice  is  prohibited  and  declared  to  be  unlaw- 
ful.    *     *     * 

"Sec.  5.  That  it  shall  be  unlawful  for  any  common,  carrier  subject  to  the 
provisions  of  this  act  to  enter  into  any  contract,  agreement,  or  combination 
witli  any  other  common  carrier  or  carriers  for  the  pooling  of  freights  of 
different  and  competing  railroads,  or  to  divide  between  them  the  aggregate 
or  net  proceeds  of  the  earnings  of  such  railroads,  or  any  portion  thereof;  and 
in  any  case  of  an  agreement  for  the  pooling  of  freights  as  aforesaid,  each 
day  of  its  continuance  shall  be  deemed  a  separate  offense.     *     *     * 

"Sec.  11.  That  a  commission  is  hereby  created  and  established  to  be  known 
as  the  Interstate  Commerce  Commission,  which  shall  be  coinposed  of  five 
•commissioners,  who  shall  be  appointed  by  the  President,  by  and  with  the  ad- 
vice and  consent  of  the  Senate.     *     *     * 

"Sec.  13.  That  any  person,  firm,  corporation,  or  association,  or  any  mer- 
cantile, agricultural,  or  manufacturing  .society,  or  any  body  politic  or  munici- 
pal organization  complaining  of  anything  done  or  omitted  to  be  done  by  any 
common  carrier  subject  to  the  provisions  of  this  act  in  contravention  of  the 
provisions  thereof,  may  apply  to  said  Commission  by  petition,  which  shall 
briefly  state  the  facts.  Whereupon  a  statement  of  the  charges  thus  made 
saall  be  forwarded  by  the  Commission  to  such  common  can-ier,  who  sliall  be 
called  upon  to  satisfy  the  complaint  or  to  answer  the  same  in  writing  with- 
in a  reasonable  time,  to  be  specified  by  the  Commission.  If  such  common 
Green  Care. — 36 


562  THE  COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

was  issued,  but  afterwards  dissolved ;  the  court  considering  that  it 
should  withhold  action  until  the  question  of  the  reasonableness  of  the 
rates  had  been  passed  upon  by  the  Interstate  Commerce  Commission. 
The  advance  went  into  effect. 

Complainants  took  proceedings  before  the  Commission,  which  re- 
ported that  the  advance  was  unreasonable,  unjust,  and  in  violation  of 
the  act  to  regulate  commerce,  and  made  the  following  order :  "That 
the  defendants,  the  Southern  Railway  Company,  Atlantic  Coast  Line 
Railway  Company,  Louisville  &  Nashville  Railroad  Company,  Nash- 
ville, Chattanooga  &  St.  Louis  Railroad  Company,  Seaboard  Air  Line 
Railway,  Central  of  Georgia  Railway  Company,  Georgia  Southern  & 
Florida  Railway  Company,  and  the  Macon  &  Birmingham  Railway 
Company,  be,  and  each  of  them  is  hereby,  notified  and  required  to 
cease  and  desist,  on  or  before  the  1st  day  of  April,  1905,  from  further 
maintaining  or  enforcing  said  unlawful  advance  of  two  cents  per  one 
hundred  pounds,  and  the  said  unlawful  rates  and  charges  resulting 
therefrom,  for  the  transportation  of  lumber  as  aforesaid." 

Complainants  filed  with  the  court  a  copy  of  the  opinion  and  order 
of  the  Commission  and  renewed  their  application  for  an  injunction. 

Speer,  District  Judge. ^  *  *  *  ^^.^^  shippers  are  appealing  to 
government  to  protect  them  against  unwarrantable  exactions  by  the 
carriers.  Appeal  may  be  made  by  the  carriers  to  protect  their  interests 
from  unremunerative  rates  to  which  they  may  be  restricted  by  state 
or  other  local  authorities.  In  either  case  complaint  is  heard  and  re- 
dress is  given.    Reagan  v.  Farmers'  Loan  &  Trust  Co.,  154;  U.  S.  362, 


carrier,  within  the  time  specifierl.  sliall  mal^e  reparation  for  the  injury  allejred 
to  have  been  done,  said  can-ier  shall  he  relieved  of  liability  to  the  complain- 
ant only  for  the  particular  violation  of  law  thus  complained  of.  If  such  car- 
rier shall  not  satisfy  the  complaint  within  the  time  specified,  or  there  shall 
appear  to  be  any  reasonable  ground  for  investigating  said  complaint,  it  shall 
be  the  duty  of  the  Commission  to  investigate  the  matters  complained  of  in 
such  manner  and  by  such  means  as  it  shall  deem  proper.  Said  commission 
shall  in  like  manner  investigate  any  complaint  forwarded  by  the  railroad 
commissioner  or  railroad  commission  of  any  state  or  territory,  at  the  request 
of  such  commissioner  or  couunission,  and  may  institute  any  inquiry  on  its 
own  motion  in  the  same  manner  and  to  the  same  effect  as  though  complaint 
had  been  made.  No  complaint  shall  at  any  time  be  dismissed  because  of  the 
absence  of  direct  damage  to  the  complainant." 

Sections  14,  15,  and  16,  as  originally  enacted,  provided  that  the  Commis- 
sion should,  after  investigation,  make  a  report,  including  findings  of  fact ; 
that  the  findings  should  in  all  judicial  proceedings  be  prima  facie  evidence 
of  the  facts  found;  that,  if  satisfied  that  the  act  had  been  violated,  the 
Commission  should  order  the  carrier  to  desist  from  or  malie  reparation  for 
such  violation,  or  both;  that,  if  the  carrier  disobeyed,  the  Commission  or 
any  person  interested  might  apply  by  summary  proceedings  to  a  designated 
Circuit  Court  of  the  United  States;  and  that  the  court  should  have  power 
to  review  the  action  of  the  commission  and  enforce  its  order  by  judgment 
or  decree,  if  found  to  be  correct.  Interstate  Com.  Com.  v.  Ala.  Mid.  Ry.,  I(j8 
U.  S.  144,  18  Sup.  Ct.  45,  42  L.  Ed.  414  (1897). 

For  the  provisions  of  these  sections  as  amended  by  the  Hepburn  act  of 
1906,  see  34  Stat.  5R4  (U.  S.  Comp.  St.  Supp.  19(.)9.  p.  1149).  For  later  amend- 
ments, see  Act  April  13,  1908.  ;^5  Stat.  60  (U.  S.  Comp.  St.  Supp.  1909.  p.  1151). 
and  especially  Act  June  18,  1910. 

6  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion  omitted. 


Ch.   3)  CHARGES   FOR   SERVICE.  5G3 

14  Sup.  Ct.  1047,  38  L.  Ed.  1014;  Chicago,  etc.,  Ry.  v.  Minnesota,  134 
U.  S.  418,  10  Sup.  Ct.  462,  33  L.  Ed.  970;  Rose's  Notes  on  U.  S.  Re- 
ports, vol.  11,  p.  946  et  seq.  It  is  no  longer  doubtful  that  "the  ques- 
tion of  the  reasonableness  of  a  rate  of  charge  for  transportation  is 
eminently  a  question  for  judicial  investigation."  Justice  Blatchford, 
in  Chicago  &  St.  Paul  Ry.  v.  Minnesota,  134  U.  S.  418,  10  Sup.  Ct. 
462,  33  L.  Ed.  970.  To  this  end,  in  part,  the  government  has  created 
the  Interstate  Commerce  Commission.  It  is  a  tribunal  to  hear,  investi- 
gate, and  report  on  the  reasonableness  of  rates,  and  to  attempt  the 
correction  of  inequalities  and  injustice  therein. 

Said  the  Supreme  Court  in  Louisville  &  Nashville  R.  R.  Co.  v.  Behl- 
mer,  175  U.  S.  675,  20  Sup.  Ct.  219,  44  L.  Ed.  309:  "That  body,  in 
the  nature  of  its  organization  and  the  duties  imposed  upon  it  by  the 
statute,  is  peculiarly  competent  to  pass  upon  the  questions  of  fact  of 
the  character  here  arising."  In  view  of  these  considerations  and  prec- 
edents, it  can,  we  think,  be  no  longer  open  to  question  that  the  inter- 
state commerce  commission  is  the  expert  tribunal  empowered  by  law 
to  determine,  in  the  first  instance,  the  reasonable  or  unreasonable 
character  of  the  rates  charged  for  transportation  in  interstate  com- 
merce.    *     *     * 

It  is  proper  to  observe,  however,  that  the  court  has  considered  the 
entire  record,  and  has  formed  its  conclusions  not  only  from  the  re- 
port of  the  Commission,  but  from  all  the  evidence  submitted  to  that 
body  and  stipulated  into  the  case  here,  and  from  the  additional  evidence 
submitted  de  novo  on  this  hearing. 

A  highly  significant  feature  of  this  case  is  the  fact  that  the  rates 
complained  of  are  the  result  of  concert  of  action  on  the  part  of  the 
members  of  the  Southeastern  Freight  Association.  *  *  *  jn  reply 
to  the  contention  on  the  part  of  the  respondents  that  they  acted  inde- 
pendently each  for  itself,  and  not  through  the  agency  of  the  South- 
eastern Freight  Association,  the  Commission  finds :  "The  proof  shows 
conclusively  that  the  advance  was  the  outcome  of  concert  of  action 
and  previous  understanding  between  the  companies.  Through  their 
authorized  official  representatives,  they  conferred  with  each  other  re- 
peatedly as  to  the  making  of  the  advance;  recognized  the  fact  that, 
because  of  competition  in  common  markets  between  the  lumber  produ- 
cing districts  served  by  them,  the  advance  should  be  from  all  those  dis- 
tricts or  none ;  and,  finally,  they  all  promulgated  the  advance  to  take 
effect  at  exactly  the  same  date  and  for  exactly  the  same  amount.  This 
concurrence  of  action  was  not  only  between  the  railway  companies, 
parties  defendant  in  this  case,  and  in  relation  to  rates  from  Georgia 
shipping  points,  but  was  participated  in  by  the  lumber-hauling  roads 
serving  the  territories  both  west  and  east  of  the  Mississippi  in  Arkan- 
sas, Louisiana,  ]\Iississippi,  Alabama,  and  Florida." 

The  Commission  concludes  that  it  is  its  duty  to  consider  this  joint, 
or  concert  of,  action  of  the  defendants  as  bearing  upon  the  reaonable- 
ness  and  validity  of  the  advanced  rate  which  results.     It  holds  that 


564  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

the  element  of  competition  is  eliminated.  In  the  absence  of  legitimate 
competition,  destroyed,  as  we  shall  presently  see,  by  methods  obvious- 
ly illegal,  the  Commission  presumes  that  the  advance  rates  are  higher 
than  legitimate  competition  would  produce.  In  other  words,  the 
marked  increase  of  charges  for  transportation  of  that  commodity 
which,  save  one  other,  affords  the  largest  tonnage  of  freight  to  the 
respondent  roads,  did  not  originate  from  a  normal  or  reasonable  ex- 
igency of  the  respondents'  business.  On  the  contrary,  it  was  an  ar- 
bitrary exaction,  imposed  by  a  combination  of  railroad  agents  made  in 
restraint  of  the  natural  movement  of  the  product  in  the  lumber  trade. 
This  combination  or  concert  of  action  on  the  part  of  the  respondent 
railroads  is  plainly  violative  of  that  provision  of  the  interstate  com- 
merce law  which  forbids  pooling.  This  was  enacted,  among  other 
things,  for  the  purpose  of  securing  competition.  Pooling  may  be  as 
well  effected  by  a  concert  in  fixing  in  advance  the  rates  which  in  the 
aggregate  would  accumulate  the  earnings  of  naturally  competing  lines, 
as  by  depositing  all  of  such  earnings  to  a  common  account  and  dis- 
tributing them  afterwards.  That  such  an  association  and  concert  of 
action  between  agents  of  naturally  competing  lines  is  destructive  of 
competition  is  equally  unanswerable.  ■  To  entertain  any  other  view  is 
to  ignore  reiterated  decisions  of  the  Supreme  Court  of  the  United 
States  and  many  rulings  of  the  Circuit  Courts  and  of  the  state  courts. 
Perhaps  the  leading  cases  on  this  subject  are  United  States  v. 
Freight  Association,  166  U.  S.  341,  17  Sup.  Ct.  540,  41  L.  Ed.  1007; 
Joint  Traffic  Association  Case,  171  U.  S.  505,  19  Sup.  Ct.  25,  43  L.  Ed. 
259.  In  the  first  case  the  court  had  under  consideration  the  legality 
of  the  Trans-Missouri  Freight  Association.  The  agreement  of  that 
body  may  differ  in  form,  but  its  substantial  purpose  was  the  same  as 
that  of  the  Southeastern  Freight  Association.  It  avowedly  was  the 
"mutual  protection  to  the  railroads  by  establishing  and  maintaining 
reasonable  rates,  rules,  and  regulations  on  all  freight  traffic,  both 
through  and  local."  After  argument  by  many  of  the  most  eminent 
counsel  in  the  country,  and  after  exhaustive  consideration,  the  court 
held  that  the  anti-trust  law®  prohibiting  contracts,  combinations,  and 
conspiracies  in  restraint  of  trade  or  commerce  among  the  several  states 
or  with  foreign  countries  applies  to  and  covers  common  carriers  by 
railroad,  and  a  contract  between  them  in  restraint  of  such  trade  or 
commerce  is  prohibited  even  though  the  contract  is  entered  into  be- 
tween competing  railroads  only  for  the  purpose  of  thereby  effecting 

6  Act  July  2,  1890,  c.  647,  20  Stat.  209  (U.  S.  Comp.  St.  1901,  p.  3200):  "Sec- 
tion 1.  Every  contract,  combination  in  tlie  form  of  trust  or  otherwise,  or 
conspiracy,  in  restraint  of  trade  or  commerce  among  the  sevei'al  states,  or 
with  foreign  nations,  is  hereby  declared  to  be  illegal.  Every  person  who  shall 
make  any  such  contract  or  engage  in  any  such  combination  or  conspiracy, 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction  thereof,  shall  be 
punished  by  fine  not  exceeding  five  thousand  dollars,  or  by  imprisonment  not 
exceeding  one  year,  or  by  both  said  punishments,  in  the  discretion  of  the 
<!0urt." 


Ch.  3)  CHARGES    FOR   SERVICE.  5G5 

traffic  rates  for  the  transportation  of  persons  and  property.  It  was 
further  held  that,  in  order  to  maintain  such  a  contention  the  complain- 
ant is  not  obliged  to  show  that  the  agreement  in  question  was  entered 
into  for  the  purpose  of  restraining  trade  or  commerce  if  such  restraint 
is  the  necessary  effect,  and  concluded  that  the  anti-trust  act  applies  to 
railroads,  and  that  it  renders  illegal  all  agreements  which  are  in  re- 
straint of  trade  or  commerce.  The  court  then  proceeds  to  declare 
that  the  agreement  of  the  association  does  in  fact  constitute  such  a 
restraint  in  violation  of  the  law.  It  is  proper  to  state  that  four  judges, 
three  of  whom  are  not  now  on  the  bench  of  the  court,  dissented  from 
this  conclusion;  but  the  opinion  of  the  majority  is,  of  course,  con- 
trolling. In  the  subsequent  case  of  United  States  v.  Joint  Traffic  As- 
sociation, 171  U.  S.  505,  19  Sup.  Ct.  25,  43  L.  Ed.  259,  the  court,  after 
full  consideration,  reaffirmed  its  holding  in  the  Trans-Missouri  Case. 
*     *     * 

The  cardinal  error  to  which  the  railroads  have  been  committed  in 
this  important  controversy  is  the  apparent  belief  that  they  have  the 
right,  by  arbitrarily  increasing  freight  rates,  to  divert  at  any  time  to 
their  own  treasuries  a  share  of  the  profits  of  successful  industries  or 
occupations.  It  was  not  contended  that  the  antecedent  rates  were  un- 
remunerative.  As  before  stated,  they  were  conceded  to  be  profitable. 
That  additional  revenue  was  needed  to  meet  increased  expenses  was 
the  motive  of  the  advance  was  testified  by  Vice  President  Gulp  of  the 
Southern  Railway  Company.  To  quote  his  language:  They  "looked 
about  to  see  where"  they  could  best,  but  without  injury,  get  that  ad- 
ditional revenue,  and  one  of  the  commodities  which  they  thought 
would  "bear  an  advance"  was  lumber.  But  the  courts  have  more  than 
once  decisively  corrected  this  assumption  on  the  part  of  railway  offi- 
cials. It  is  true  that  the  business  of  railway  transportation  is  usually 
carried  on  by  private  capital  invested  in  corporations.  It  is,  however, 
business  of  a  quasi  public  nature.  As  we  have  seen,  there  is  no  doubt 
that  within  the  limitations  of  the  Constitution  it  is  subject  to  govern- 
mental control.  These  facts  prohibit  the  agents  of  the  railway  from 
charging,  like  the  owners  of  other  property,  any  price  they  may  choose 
to  exact  for  the  use  of  the  railroad.     *     *     * 

Aher  careful  consideration  of  the  extensive  record,  there  seems  to 
have  been  an  utter  absence  of  excuse  or  justification  for  the  concerted 
action  of  the  railroads  which  advanced  the  rates  on  lumber  throughout 
the  South.  The  vast  increase  of  the  lumber  traffic  had  resulted  in 
large  increase  of  net  revenue  for  those  roads.  The  service  was  in- 
expensive. It  required  neither  rapidity  of  movement  nor  specially 
equipped  cars,  and  such  simple  equipment  as  was  needed  the  shippers 
were  obliged  to  furnish  and  pay  for.  The  railroads  were  required 
neither  to  load  nor  unload  the  cars.  This  was  done  by  the  consignor 
and  consignee.  The  lumber  carried  was  neither  fragile  nor  perishable, 
and  the  risk  therefore  from  loss  or  damage  was  inappreciable.  :\Ir. 
Tift,  the  principal  witness  for  the  complainants,  and  one  of  the  largest 


566  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

lumber  men  of  the  state,  testified  that  for  30  years  he  had  not  been 
compelled  to  present  a  claim  for  damage  on  lumber  shipped  from  his 
mill.  Nor  were  there  any  exigencies  in  the  financial  condition  of  the 
principal  defendants  which  called  for  so  vast  a  contribution  to  their 
treasuries  from  an  industry  whose  product  forms  such  a  large  part 
of  their  tonnage,  and  which  is  so  indispensable  to  the  public  wel- 
fare.    *     *     * 

They  have  no  right  to  graduate  their  charges  in  proportion  to  the 
prosperity  which  comes  to  industries  whose  products  they  transport. 
With  equal  reason  they  might  demand  an  increase  of  rates  for  the 
transportation  of  cotton  with  every  increase  in  the  value  of  our  great 
staple.  Indeed,  to  concede  the  principle  for  the  fixation  of  rates  upon 
which  the  railroads  through  the  medium  of  the  Southeastern  Freight 
Association  have  acted  in  this  case  would  concede  their  power  to  levy 
for  no  better  service  augmentation  of  tolls  for  every  increase  of  profit 
in  every  line  of  endeavor  won  by  the  enterprise,  sagacity,  and  indus- 
try of  the  American  people.  It  is  superfluous  to  add  that  a  govern- 
ment of  laws,  and  not  of  men,  will  never  tolerate  such  domination 
and  control  of  the  trade,  manufactures,  and  commerce  of  the  peo- 
ple.    *     *     * 

In  this  case  the  conclusions  of  the  court  as  to  the  issues  involved 
agree  with  the  conclusions  of  the  interstate  commerce  commission  as 
expressed  by  their  report.  A  decree  enjoining  all  the  respondents 
against  further  enforcement  of  the  rates  complained  of  will  be  at 
once  entered.'^     *     *     * 

7  .\ffirmed  200  U.  S.  428,  27  Sup.  Ct.  709.  51  L.  Ed.  1124  (1907). 

"The  words  'reasonable'  and  'just.'  as  used  in  the  statute,  as  applied  to 
rates,  are  each  relative  terms.  They  do  not  mean  to  imply  that  the  rates 
upon  every  railroad  engased  in  interstate  commerce  shall  be  the  same,  or  even 
about  the  .same.  The  conditions  and  circumstances  of  each  road  surroundin.^ 
the  traffic,  and  which  enter  into  and  control  the  nature  and  character  of  the 
service  performed  by  the  carrier  in  the  transportation  of  property,  such  as 
the  cost  of  transportation,  which  involves  volume  or  lishtness  of  traffic,  ex- 
penses of  construction  and  of  operation,  competition  in  some  respects  of  car- 
riers not  subject  to  the  Law.  rates  made  by  shorter  and  competing  lines  to 
the  same  points  of  destination,  space  occupied  by  freight,  value  of  freight, 
and  risk  of  carriage  to  carrier,  all  have  to  be  considered  in  determining 
whether  a  given  rate  is  'reasonable'  and  'just.'  "  New  Orleans  Cotton  Ex. 
V.  I.  C.  R.  R.,  2  Interst.  Com.  R.  785  (1890). 

"AVe  have  seen  that  grain  can  be  transported  under  actual  conditions  b.r 
the  Lake  Shore  and  the  New  York  Central  Railroads  from  Chicago  to  New 
York  at  a  cost  less  than  that  by  most  other  routes.  It  would  hardly  be  just 
to  these  other  routes  to  compel  the  putting  in  of  a  rate  upon  that  line  which 
was  reasonable  with  respect  to  it  alone  and  which  had  no  reference  to  its 
competitors.  Upon  the  other  hand,  it  would  be  equally  unfair  to  the  public 
if  the  most  expensive  lines  were  made  the  standard."  Prouty,  Commission- 
er, In  the  Matter  of  Proposed  Advances  in  Freight  Rates,  9  Iiiterst.  Com.  R. 
382  (1903). 

"We  understand  the  purport  of  this  request  to  be  that  a  public  service  com- 
pany cannot  lawfully  charge  in  any  event  more  than  the  services  are  rea- 
sonably worth  to  the  public  as  individuals,  even  if  charges  so  limited  would 
fail  to  produce  a  fair  return  to  the  company  upon  the  value  of  its  property 
or  investment.  Such  we  think  is  the  law.  *  *  *  The  company  engages  in 
a  voluntary  enterprise.     It  is  not  compelled  at  the  outset  to  enter  into  the 


Ch.  3)  CHARGES   FOR   SERVICE.  567 

SOUTHERN  PAC.  CO.  v.  BARTINE. 
(Circuit  Court,  D.  Nevada,  1909.     170  Fed.  72.j.) 

Farrington,  District  Judge. ^  These  suits  were  brought  to  prevent 
enforcement  of  the  so-called  "Railroad  Commission  Law"  [of  the 
state  of  Nevada]  on  the  ground  that  it  is  repugnant  to  the  federal  and 
to  the  state  Constitutions.  Substantially  the  same  issues  are  raised  in 
each  case,  therefore  all  will  be  considered  together.     *     *     * 

In  brief,  the  act  provides  for  the  creation  of  a  railroad  commission, 
charges  it  with  the  administration  and  enforcement  of  the  law,  de- 
fines its  powers  and  duties,  fixes  the  compensation  of  its  members, 
fixes  maximum  freight  rates,  empowers  the  Commission  to  establish 
rates  after  investigation,  prohibits  unjust  discrimination,  provides 
methods  of  procedure  to  enforce  the  law,  and  fixes  penalties  for  its 
violation.     *     *     * 

The  business  of  the  company  is  either  interstate  or  intrastate  traffic. 
All  business  which  originates  out  of,  comes  into,  and  is  laid  down  in 
the  state,  all  business  which  originates  in  and  passes  out  of  the  state, 
and  all  business  which  originates  out  of,  passes  through,  and  is  deliver- 

imdertaking.  It  must  enter,  if  at  all,  subject  to  the  contingencies  of  the  busi- 
ness, and  sul^ject  to  the  rule  that  its  rates  must  not  exceed  the  value  of  the 
services  rendered  to  its  customers."  Savage,  J.,  in  Water  District  v.  Water 
Co..  fi9  Me.  371,  59  Atl.  .537  (1901). 

"There  are  eight  roads  or  lines  carrying  between  Chicago  and  Kansas  City. 
A  less  number  might  do  the  business  as  well  and  cheaper.  If  eight  more 
were  built,  the  rates  might  need  to  be  doubled,  if  all  roads  constructed  have 
a  right  to  such  income  as  will  meet  the  obligations  of  the  companies  owning 
them."'     In  the  matter  of  Rates  on  Food  Products.  3  Interst.  C.  K.  93  fl890>. 

"The  preamble  and  resolution  of  the  Senate  and  the  resolution  which  led 
to  their  adoption  imply  that,  to  be  reasonable,  the  rates  on  food  products 
must  be  such  as  to  enable  the  products  to  be  marketed  at  actual  cost  of  pro- 
duction. This  basis  or  limit  of  compensation  for  transportation  services  will 
hardlv  stand  the  test  of  fair  dealing.  *  *  *  We  think  it  is  time  that  at 
the  prices  which  have  at  times  prevailed  since  the  gathering  of  the  last  crop 
corn  from  the  most  distant  fields  fit]  could  not  be  marketed  at  actual  cost  of 
production  and  pay  reasonable  rates.  But  the  evil  cannot  be  remedied  with- 
out taking  the  services  or  property  of  men  engaged  in  one  business  or  em- 
ployment and  transferring  them  to  those  engaged  in  other  employments."     Id. 

"We  think  no  better  rule  applicable  to  the  matter  under  investigation  than 
that  applied  by  raili'oads  themselves,  in  acordance  with  which  rates  are  so 
adjusted  as  to  secure  the  largest  interchange  of  commodities.  This  rule  is 
approved  by  its  frequent  application  in  the  movement  of  Western  grain 
through  the'  voluntary  action  of  the  roads.  Put  such  a  rate  on  corn  as  will 
,^ncoiu-age  and  warrant  its  movement,  if  such  a  rate  is  fairly  remunerative. 
While  rates  should  not  be  so  low  as  to  imiwse  a  burden  on  other  traffic,  they 
should  have  reasonable  relation  to  cost  of  production  and  the  value  of  the 
transportation  sen-ice  to  the  producer  and  shipper.  In  the  carriage  of  the 
great  staples,  which  supply  an  enormous  business,  and  which  in  market  value 
and  actual  cost  of  transportation  are  among  the  cheapest  articles  of  com- 
merce, rates  yielding  moderate  profit  are  both  justifiable  and  necessary."     Id. 

See  further,  In  the  Matter  of  Proposed  Advances  in  Freight  Rates.  9  In- 
terst Com.  R.  382  (1903);  Interstate  Commerce  Com.  v.  So.  Ry.  (C.  C.)  117 
Fed.  741  (1902)  :  Chicago,  etc..  Ry.  v.  People.  1.36  111.  App.  2  (191)7) :  So.  Ry. 
V.  Railroad  Commission  of  Indiana.  42  Ind.  App.  90.  83  N.  E.  721  (1908);  In 
re  Arkansas  Railroad  Rates  (C.  C.)  103  Fed.  141  (1908). 

8  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


568  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

ed  outside  the  state,  is  classed  as  interstate.  All  business  which  is 
picked  up,  carried,  and  delivered  wholly  within  the  state  of  Nevada  is 
intrastate  or  domestic  business. 

it  is  only  the  intrastate  business  which  can  be  considered  in  these 
proceedings.  With  the  regulation  of  rates,  tolls,  and  charges  on  inter- 
state traffic,  the  Legislature  has  nothing  to  do.  It  is  well  settled  that 
a  state,  either  through  its  Legislature  or  by  a  railroad  commission,  may 
make  and  regulate  rates,  charges,  and  tolls  for  intrastate  traffic,  and 
that  this  subject  is  primarily  within  the  control  of  the  state.  This 
power  finds  its  root  in  the  old  common  law.  When  a  man  parts  with 
his  property  it  is  no  longer  his;  when  he  devotes  it  to  the  public  use 
it  ceases  to  be  private  property.  "He,  in  effect,  grants  to  the  public 
an  interest  in  such  use,  and  must,  to  the  extent  of  that  interest,  sub- 
mit to  be  controlled  by  the  public  for  the  common  good  as  long  as  he 
maintains  the  use.  When  private  property  is  devoted  to  public  use, 
it  is  subject  to  public  regulation;  if  the  right  to  regulate  exists,  the 
right  to  establish  the  reasonable  compensation  for  services  as  one  of  the 
means  of  regulation  is  implied."  ]\Iunn  v.  Illinois,  9-i  U.  S.  113,  21 
L.  Ed.  77. 

If  the  state  prescribes  a  schedule  of  maximum  rates  for  transporta- 
tion of  intrastate  freight,  the  rates  must  be  reasonable;  that  is,  they 
must  be  reasonable  both  to  the  carrier  and  to  the  public.  It  must  al- 
ways be  remembered  that  the  carrier  is  entitled  to  a  just  and  reason- 
able compensation  for  his  services  and  for  the  use  of  his  property 
devoted  to  public  service.  This  compensation  up  to  the  full  measure 
of  what  is  just  and  reasonable  is  his  property,  and  is  protected  by.  that 
provision  of  the  federal  Constitution  in  which  it  as  ordained  that  no 
state  shall  "deprive  any  person  of  life,  liberty  or  property  without  due 
process  of  law,  nor  deny  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws."  "If  the  company  is  deprived  of  the  power  of 
charging  reasonable  rates  for  the  use  of  its  property,  and  such  dep- 
rivation takes  place  in  the  absence  of  an  investigation  by  judicial 
machinery,  it  is  deprived  of  the  lawful  use  of  its  property,  and  thus, 
in  substance  and  effect,  of  the  property  itself,  without  due  process  of 
law  and  in  violation  of  the  Constitution  of  the  United  States;  and, 
in  so  far  as  it  is  thus  deprived,  while  other  persons  are  permitted  to 
receive  reasonable  profits  upon  their  invested  capital,  the  company  is 
deprived  of  the  equal  protection  of  the  laws."  Chicago,  etc.,  Ry.  Co. 
v.  Minnesota,  131  U.  S.  118,  156,  158,  10  Sup.  Ct.  162,  167,  33  L.  Ed. 
97G. 

Bearing  these  principles  in  mind,  it  is  first  in  order  to  ascertain  the 
reasonable  value  of  that  portion  of  the  Southern  Pacific  Company's 
property  which  is  devoted  to  the  movement  of  intrastate  freight ;  that 
is,  to  transportation  which  both  begins  and  ends  in  the  state.  The  rule 
for  ascertaining  such  value  is  thus  stated  in  Smyth  v.  Ames,  169  U. 
S.  166,  514,  516,  18  Sup.  Ct.  118,  433,  434,  42  L.  Ed.  819 :  "It  cannot, 
therefore,  be  admitted  that  a  railroad  corporation  maintaining  a  high- 


Ch.  3)  CHARGES    FOR   SERVICE.  569 

way  under  the  authority  of  the  state  may  fix  its  rates  with  a  view  solely 
to  its  own  interests,  and  ignore  the  rights  of  the  public.  But  the  rights 
of  the  public  would  be  ignored  if  rates  for  the  transportation  of  per- 
sons or  property  on  a  railroad  are  exacted  without  reference  to  the 
fair  value  of  the  property  used  for  the  public  or  the  fair  value  of  the 
services  rendered,  but  in  order  simply  that  the  corporation  may  meet 
operating  expenses,  pay  the  interest  on  its  obligations,  and  declare  a 
dividend  to  stockholders.  If  a  railroad  corporation  has  bonded  its 
property  for  an  amount  that  exceeds  its  fair  value,  or  if  its  capitaliza- 
tion is  largely  fictitious,  it  may  not  impose  upon  the  public  the  burden 
of  such  increased  rates  as  may  be  required  for  the  purpose  of  reali- 
zing profits  upon  such  excessive  valuation  or  fictitious  capitalization ; 
and  the  apparent  value  of  the  property  and  franchises  used  by  the 
corporation,  as  represented  by  its  stocks,  bonds,  and  obligations,  is  not 
alone  to  be  considered  when  determining  the  rates  that  may  be  reason- 
ably charged.  *  *  *  The  basis  of  all  calculations  as  to  the  rea- 
sonableness of  rates  to  be  charged  by  a  corporation  maintaining  a  high- 
way under  legislative  sanction  must  be  the  fair  value  of  the  property 
being  used  by  it  for  the  convenience  of  the  public.  And  in  order  to 
ascertain  that  value,  the  original  cost  of  construction,  the  amount  ex- 
pended in  permanent  improvements,  the  amount  and  market  value 
of  its  bonds  and  stock,  the  present  as  compared  with  the  original  cost 
of  construction,  the  probable  earning  capacity  of  the  property  under 
particular  rates  prescribed  by  statute,  and  the  sum  required  to  meet 
operating  expenses,  are  all  matters  for  consideration,  and  are  to  be 
given  such  weight  as  may  be  just  and  right  in  each  case.  We  do  not 
say  that  there  may  not  be  other  matters  to  be  regarded  in  estimating 
the  value  of  the  property.  What  the  company  is  entitled  to  ask  is  a 
fair  return  upon  the  value  of  that  which  it  employs  for  the  public 
convenience.  On  the  other  hand,  what  the  public  is  entitled  to  de- 
mand is  that  no  more  be  exacted  from  it  for  the  use  of  a  public  high- 
way than  the  services  rendered  by  it  are  reasonably  worth." 

The  evidence  discloses  but  little  testimony  as  to  the  present  reason- 
able value  of  the  property  in  question.  The  Southern  Pacific  Company 
operates  under  a  lease  the  Central  Pacific  Railway  Company's  property 
in  Nevada,  and  it  is  the  value  of  this  property  which  we  are  to  as- 
certain.    *     *     * 

A  reasonable  return  on  this  valuation  should  be  required  from  the 
whole  Nevada  business  done  on  the  Central  Pacific  Railway,  and  only 
a  fair  proportion  thereof  from  the  intrastate  freight  trafiic. 

[The  court  then  entered  upon  an  analysis  of  the  evidence  as  to  the 
cost  and  earnings  of  the  Nevada  intrastate  traffic  of  the  Central  Pacific 
Company.      It   declined   to   hold  the    statute   rates    unconstitutional.] 


Nevada  &  California  Railway  Company. 
The  undisputed  testimony  shows  that  the  total  issued  capital  stock 
of  the  company  amounts  to  $4,837,000.     The  proportionate  amount 


570  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

thereof  allotted  to  Nevada  on  a  mileage  basis  is  $3,365,54:3.  This  last 
amount  will  be  distributed  to  the  intrastate  traffic  of  the  company  in 
the  ratio  which  its  total  Nevada  earnings,  $1,820,766.79,  bear  to  $250,- 
079.71,  its  total  earnings  from  Nevada  intrastate  freight,  or  13.7318+ 
per  cent.  13.7348+  per  cent,  of  $3,265,543  is  $448,515.80,  the  capital 
stock  of  the  company  allotted  to  intrastate  freight. 

The  total  funded  debt  of  the  company  is  $2,000,000,  on  which  the 
annual  interest  charge  is  $80,000 ;  the  proportionate  amount  of  debt 
allotted  to  intrastate  freight  is  $184,887.09,  on  which  the  annual  in- 
terest is  $7,395.42. 

The  total  cost  of  the  entire  line  of  the  Nevada  &  California  Railway 
to  June  30,  1907,  was  $6,544,911.32,  of  which  the  proportionate 
amount  allotted  to  Nevada  on  a  mileage  basis  is  $4,405,061.20,  and  to 
Nevada  intrastate  freight  traffic  $605,026.34.  The  taxes  paid  by  the 
company  on  its  Nevada  property  in  1907  amounted  to  $47,649.56.  Of 
this  amount  the  intrastate  traffic  will  be  charged  with  13.7348+  per 
cent.,  or  $6,542.28. 

In  this  case  it  is  shown  that  the  intrastate  freight  business  of  the 
Nevada  &  California  Railway  Company  is  more  expensive  than  the 
business  of  the  company  as  a  whole,  in  the  proportion  of  3  to  1 ;  the 
ratio,  however,  applies  only  to  so  much  of  the  expense  of  operation  as 
relates  to  the  cost  of  conducting  transportation.     *     *     * 

During  the  year  1907  the  company  transported,  all  told,  on  its  entire 
line  53.637,779  tons  of  freight  one  mile  at  a  cost  for  conducting  trans- 
portation of  $298,808.22.     *     *     * 

The  company  in  1907  moved  7,151,303  tons  of  intrastate  freight 
one  mile.  Multiplying  the  number  of  tons  by  the  cost  of  moving  one 
ton  one  mile,  the  result  is  $113,539.80,  or  the  cost  for  conducting  trans- 
portation of  intrastate  freight. 

Operating  expenses  for  maintenance  of  way  and  structures,  mainte- 
nance of  equipment  and  general  expense,  are  not  shown  to  be  greater 
for  intrastate  freight  than  for  freight  in  general.  In  1907  the  total 
number  of  tons  moved  one  mile  in  Nevada  was  51.590,165,  of  which 
7,151.303  were  intrastate  freight.  The  total  earnings  were  $1,317,- 
302.37,  of  which  $250,079.71  were  the  earnings  from  intrastate  freight. 
If  the  maximum  rates  of  the  statute  had  been  in  force  during  that 
year,  the  intrastate  freight  earnings  would  have  been  reduced  by  the 
sum  of  $98,586.04. 

The  total  expense  of  moving  all  Nevada  freight  is  apportioned  as 

follows : 

Conducting    transportation $244,566  13 

^laintenance  of  way .$12."i..316  55 

Maintenance   of  equipment 86.480  07 

General   expense 18,183  02     $229,979  64 

Total  operating  expense  for  all  Nevada  freight,  51,590,165 
tons    $474,545  77 

Dividing  the  total  expense  for  maintenance  of  way,  etc.,  $229,979.- 
64,  by  51,590,165,  the  number  of  tons  moved  one  mile,  the  result  ii 


Ch.   3)  CHARGES   FOR   SERVICE.  571 

.4457+  of  one  cent  per  ton  mile.  Multiplying  7,151,303,  the  number 
of  tons  of  intrastate  freight  moved,  by  .4457+  of  one  cent,  the  cost 
per  ton  mile,  we  have  $31,873.35,  expense  of  intrastate  freight  for 
maintenance  of  way,  etc. 

These  results  may  be  summarized  as  follows : 

Total    receipts    for    hauling    intrastate    freight $2/)0,079  71 

Reduction  if  maximum  rates  had  been  in  force 98,580  04 

Total  receipts  under  reduced  rates $151,493  67 

Conducting    transportation .^118,. 539  80 

Maintenance  of  way,  etc 31.873  35 

Taxes 0,542  28     $151.9.j5  43 

Excess  of  expense  and  taxes  over  income $       461  70 

Operating  expenses,  including  taxes,  exceed  the  income  which  could 
have  been  received  under  the  maximum  rates  by  $461. 7G.  Thus  there 
is  nothing  left  for  interest  or  for  dividends  on  the  stock. 

In  Spring  Valley  Waterworks  v.  San  Francisco  (C.  C.)  124  Fed. 
574,  Judge  Morrow  held  that  water  rates  fixed  by  a  municipal  ordi- 
nance which  yielded  but  4.40  per  cent,  return  on  the  reasonable  value 
of  the  property  employed  in  supplying  San  Francisco  with  water, 
were  confiscatory.  Judge  Gilbert,  in  a  subsequent  case  between  the 
same  parties  ([C.  C]  165  Fed.  657,  666),  held  that  rates  fixed  by  a 
municipal  ordinance  which  yielded  less  than  4.4  per  cent,  on  the  in- 
vestment were  confiscatory. 

On  the  undisputed  facts  of  this  case,  and  evidence  which  was  in- 
troduced without  objection  and  without  contradiction,  the  maximum 
rates,  if  enforced,  would  result  in  confiscating  the  use  of  complain- 
ant's property.^ 

San  Pedro,  Los  Angeles  &  Salt  Lake  Railroad  Company. 

*  *  *  The  San  Pedro  Railroad  runs  across  the  southern  portion 
of  the  state  for  a  distance  of  210.87  miles,  through  a  sparsely  settled, 
unproductive  country.  *  *  *  The  road  was  opened  in  May,  1905. 
During  the  11  months  ending  ^lay  31,  1907,  the  company  handled  but 
898  tons  of  intrastate  freight;  this  was  carried  an  average  of  02.73 
miles,  making  56,233  ton  miles  all  told,  for  a  compensation  of  $3,733.- 
49      *     *     * 

It  is  true  the  net  income  above  operating  expenses  was  not  sufiicient 
during  the  11  months  mentioned  to  pay  that  portion  of  the  taxes  and 
of  the  interest  on  the  funded  and  floating  debt  which  was  properly 
chargeable  to  Nevada  intrastate  freight  traffic.  But  this  is  also  true 
of  the  company's  Nevada  business  in  general,  the  deficit  for  that  busi- 
ness being  $105,475.97.  And  it  also  appears  that  the  total  income  of 
the  company  from  its  business  in  Utah,  Nevada,  and  California  as  a 

9  The  bill  was  dismissed  as  prematurely  filed.  The  court  said:  "When  an 
unjust  or  unreasonable  rate  or  schedule  of  rates  has  been  actually  and  finally 
adopted  by  order  of  the  board,  it  may  be  properly  challenged,  and  its  enforce- 
ment enjoined." 


572  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

whole  was  insufficient  to  pay  operating  expenses,  taxes,  and  interest 
on  the  debt,  the  deficit  being  $313,825.93.     *     *     * 

It  does  not  necessarily  follow  that  a  schedule  of  maximum  rates 
fixed  by  law  is  confiscatory  because  it  fails  to  yield  a  reasonable  re- 
turn on  the  investment,  above  taxes,  operating  expense,  and  interest 
on  the  indebtedness.  The  rates  must  be  reasonable  to  the  company, 
but  they  must,  in  any  event,  be  reasonable  to  the  public.  If  a  railroad 
is  built  into  a  new,  sparsely  settled  territory  with  a  view  of  serving  a 
large  future  population  and  developing  business,  the  Constitution  does 
not  require  the  few  people  and  the  small  business  of  the  present  time 
to  pay  rates  which  will  yield  an  income  equal  to  the  full  return  to  be 
gathered  when  the  country  is  populated  and  business  developed  to  the 
full  capacity  of  the  road.  Beale  &  Wyman,  R.  R.  Rate  Reg.  §§  3-i3, 
344,  462;  Capital  City  Gaslight  Co.  v.  Des  Moines  (C.  C.)  72  Fed. 
829,  844;  Boise  City  I.  &  L.  Co.  v.  Clark,  131  Fed.  415,  65  C.  C.  A. 
399 ;  Water  Dist.  v.  Water  Co.,  99  Me.  371,  376,  59  Atl.  537. 

In  San  Diego  Land  &  Town  Co.  v.  Jasper,  189  U.  S.  439,  446,  23 
Sup.  Ct.  571,  574,  47  L-  Ed.  892,  Mr.  Justice  Holmes  says:  "If  a 
plant  is  built,  as  probably  this  was,  for  a  larger  area  than  it  finds  itself 
able  to  supply,  or,  apart  from  that,  if  it  does  not,  as  yet,  have  the  cus- 
tomers contemplated,  neither  justice  nor  the  Constitution  requires  that, 
say,  two-thirds  of  the  contemplated  number  should  pay  a  full  return." 

Under  the  evidence  it  cannot  be  held  that  the  maximum  rates  if 
applied  as  a  whole  to  the  intrastate  freight  traffic  of  this  company  are 
confiscatory.^  ° 

10  In  Alabama,  etc..  Ry.  v.  Miss.  R.  R.  Commission,  203  U.  S.  496,  27  Sup. 
Ct.  163,  51  L.  Ed.  280  (i906),  where  the  order  of  a  railroad  commission  re- 
quired a  railroad  to  sive  the  same  Ioav  rate  to  all  shippers  of  grain  which  it 
had  been  giving  to  some  shippers,  and  the  railroad  contended  that  the  rate 
was  unremunerative,  Brewer,  J.,  said:  "Even  if  a  state  may  not  compel  a 
railroad  company  to  do  business  at  a  loss,  and  conceding  that  a  railroad  com- 
pany may  insist,  as  against  the  power  of  the  state,  upon  the  right  to  estab- 
lish'such  rates  as  will  afford  reasonable  compensation  for  services  rendered, 
yet  when  it  voluntarily  establishes  local  rates  for  some  shippers  it  cannot 
resist  the  power  of  the  state  to  enforce  the  same  rates  for  all." 

A  Legislature  may  fix  a  rate  for  transportation  by  common  carriers,  or 
may  prescribe  that  the  rate  shall  be  reasonable,  and  confer,  it  seems,  upon 
an  administrative  board  power  to  ascertain  what  rates  are  of  that  character 
and  to  promulgate  them. 

"This  law  establishes,  and  thenceforth  assumes  the  existence  of,  rates,^ 
charges,  classifications,  and  services  discoverable  by  investigation,  but  undis- 
closed, which  are  exactly  reasonable  and  just.  *  *  *  If  it  were  conceded 
that  the  commission  had  power  or  discretion  to  fix  one  of  several  rates,  either 
of  which  would  be  just  and  reasonable,  it  would  be  hard  to  say  that  this 
was  not  a  delegation  of  pure  legislative  power  to  the  commission.  But  the 
theory  of  this  law  is  to  delegate  to  the  commission  the  power  to  ascertain 
facts  and  to  make  mere  administrative  regulations."  Timlin,  J.,  in  Minn., 
etc.,  Ry.  V.  R.  R.  Comm.,  136  Wis.  146,  116  N.  W.  905,  17  L.  R.  A.  (N.  S.)  821 
(1908). 

"The  law  books  are  full  of  statutes  unquestionably  valid,  in  which  the 
Legislature  has  been  content  to  simply  establish  rules  and  principles,  leav- 
ing execution  and  details  to  other  officers.  Here  it  has  declared  that  rates 
shall  be  reasonable  and  just,  and  committed  what  is,  partially  at  least,  the 
mere  administration  of  that  law  to  the  railroad  commissioners.     Suppose,  in- 


Ch.  3)  CHARGES   FOR   SERVICE.  573 

Stead  of  a  general  declaration  that  rates  should  be  reasonable  and  just,  it 
had  ordered  that  the  rates  should  be  so  fixed  as  to  secure  to  the  carrier  above 
the  cost  of  caiTiage  3  per  cent,  upon  the  money  invested  in  the  means  of 
transportation,  and  then  committed  to  the  board  of  railroad  commissioners 
the  fixing  of  a  schedule  to  carry  this  rule  into  effect,  would  not  the  functions 
thus  vested  in  such  a  board  be  strictly  administrative?"  Brewer,  J.,  iu  Chi- 
cago, etc.,  R.  Co.  V.  Dey  (C.  C.)  35  Fed.  860,  874,  1  L.  K.  A.  744  (1888). 

"The  claim  that  the  statute  commits  to  the  arbitrary  discretion  of  the  Sec- 
retary of  the  Treasury  the  determination  of  what  teas  may  be  imported,  and 
therefore  in  effect  vests  that  official  with  legislative  power,  is  without  merit. 
*  *  *  We  may  say  of  the  legislation  in  this  case  *  *  *  that  it  does  not 
in  any  real  sense  invest  administrative  officials  with  the  power  of  legislation. 
Congress  legislated  on  the  subject  as  far  as  was  reasonably  practicable,  and 
from  the  necessities  of  the  case  was  compelled  to  leave  to  executive  officials 
the  duty  of  bringing  about  the  result  pointed  out  by  the  statute.  To  deny 
the  power  of  Congress  to  delegate  such  a  duty  would,  in  effect,  amomit  but 
to  declaring  that  the  plenary  power  vested  in  Congress  to  regulate  foreign 
commerce  could  not  be  efficaciously  exerted."  White,  J.,  in  Buttfield  v. 
Stranahan,  192  U.  S.  470.  24  Sup.  Ct.  349,  48  L.  Ed.  .52,5  (1904). 

Since  the  rates  are  fixed  as  being  those  which  the  statute  prescribes, 
a  commission  which  fixes  and  puts  them  into  effect  in  doing  so  decides  what 
the  rights  and  duties  are  which  the  statute  has  created  or  declared.  The 
jnaking  of  such  a  decision  is  judicial  in  character,  and  though,  when  made 
by  a  commission,  it  is  an  exercise  of  administrative  power,  in  that  it  is  a  step 
in  the  discharge  of  an  administrative  function,  it  is  not  in  nature  such  as  to 
be  exclusively  administrative,  or  nonjudicial,  within  the  constitutional  prin- 
ciple which  forbids  the  grant  of  nonjudicial  power  to  a  court.  See  Trout- 
man  V.  Smith,  105  Ky.  231,  48  S.  W^  1084  (1889).  It  would  seem,  therefore, 
that  a  Legislature  may  constitutionally  provide  for  a  review  by  a  court  of 
a  valid  order  of  a  commission  fixing  rates,  and  may  give  the  court  power  to 
ntillify  the  order  if  the  action  of  the  commission,  though  within  its  i^ower, 
was  erroneous,  at  least  if  the  error  is  clear.  Minn.,  etc.,  Ry.  v.  Railroad 
Comm..  supra.  And  see  Int.  Com.  Com'n  v.  Ala.  Mid.  Ry..  168  U.  S.  144,  18 
Sun.  Ct.  45,  42  L.  Ed.  414  (1897);  U.  S.  v.  Duell.  172  U.  S.  576.  19  Sup.  Ct. 
286,  43  L.  Ed.  559  (1899)  ;  Wahoo  v.  Dickinson,  23  Neb.  426,  36  N.  W.  813 
(1888).  But  compare  Reagan  v.  Farmers'  Loan  <&  Trust  Co.,  154  U.  S.  362, 
397,  399,  14  Sup.  Ct.  1047,  38  L.  Ed.  1014  (1894);  Steenerson  v.  Gt.  No.  Ry. 
Co.,  69  Minn.  353,  72  N.  W.  713  (1897). 

If  a  rate  fixed  by  law  turns  out  to  be  less  than  the  worth  of  the  service 
rendered,  and  so  low  that  the  carrier  cannot  earn  a  fair  income,  the  statute 
or  order  prescribing  it  is  not  "due  process  of  law."  no  matter  how  thoroughly 
the  subject  has  been  investigated  and  how  carefully  the  rate  has  been  fixetl, 
whether  by  legislature,  commission,  or  court.  Preiitis  v.  Atl.  Coast  Line.  211 
U.  S.  210,  29  Sup.  Ct.  67,  53  L.  R.  A.  150  (1908).  When  the  ordinary  jurisdic- 
tion of  a  court  is  invoked  to  enforce  an  alleged  right,  and  the  right,  or  a  de- 
fense set  up  against  it,  depends  on  the  validity  of  a  statutory  rate,  the  court 
may  pass  upon  the  validity  of  the  rate,  though  the  statute  itself  gives  no 
jurisdiction  to  do  so.  Atlantic  Coast  Line  v.  Commonwealth.  102  Va.  .599. 
46  S.  E.  911  (1904);  Chicago,  etc..  Ry.  Co.  v.  Minn.,  134  U.  S.  418,  456,  10 
Sup.  Ct.  462,  702,  33  L.  Ed.  970  (1890). 


574  THE  COMMON    CARRIER'S    DUTY   TO  SERVE.  (Part  5 

CHAPTER  IV 
EQUALITY  OF  SERVICE 


SCOFIELD  V.  LAKE  SHORE  &  M.  S.  RY.  CO. 

(Supreme  Court  of  Ohio,  1885.    43  Ohio  St.  571,  3  N.  E.  907,  54  Ani.  Rep.  S4G.) 

Case  reserved  for  decision  by  the  Supreme  Court.  The  plaintiff 
filed  a  petition  in  the  court  of  common  pleas  praying  that  the  defendant 
might  be  restrained  from  discriminating  against  them  and  in  favor  of 
the  Standard  Oil  Company  as  to  rates  charged  for  shipping  oil,  either 
upon  its  own  lines  or,  in  case  of  through  shipments,  over  its  line  and 
connecting  lines. 

The  court  found  that  the  railroad,  in  consideration  of  a  promise  by 
the  Standard  Oil  Company  to  ship  all  their  product  of  petroleum  over 
its  line,  agreed  to  carry  for  the  Standard  Oil  Company  at  an  average 
rate  about  10  cents  less  than  the  published  rate  charged  their  compe- 
titors, the  plaintiffs.  The  difference  of  10  cents  a  barrel  on  the  yearly 
output  of  plaintiff's  refineries  would  amount  to  about  $15,000,  or  31 
per  cent,  of  the  capital  used  in  their  business. 

AtherTon,  J.^  The  main  question  in  this  case,  and  to  which  all 
others  are  subordinate,  is  this :  Has  the  defendant  a  right  to  discrim- 
inate between  its  freighters  and  customers,  and  furnish  transportation 
to  one  at  a  less  rate  than  to  others,  in  a  case  where  such  discrimina- 
tion is  injurious  to  and  destructive  of  the  legitimate  business  of 
others?     *     *     * 

The  learned  Chief  Justice  Beasley,  in  pronouncing  the  judgment  of 
the  Supreme  Court  of  New  Jersey,  said :  'Tn  my  opinion,  a  railroad 
company,  constituted  under  statutory  authority,  is  not  only  by  force  of 
its  inherent  nature  a  common  carrier,  *  *  *  but  it  becomes  an 
agent  of  the  public  in  consequence  of  the  powers  conferred  upon  it. 
A  company  of  this  kind  is  invested  with  important  prerogative  fran- 
chises, among  which  are  the  rights  to  build  and  use  a  railway  and  to 
charge  and  take  tolls  and  fares.  These  prerogatives  are  grants  from 
the  government,  and  public  utility  is  the  consideration  for  them.  Al- 
though in  the  hands  of  a  private  corporation,  they  are  still  sovereign 
franchises,  and  must  be  used  and  treated  as  such.  They  must  be  held 
in  trust  for  the  general  good.  If  they  had  remained  under  the  con- 
trol of  the  state,  it  could  not  be  pretended  that  in  the  exercise  of  them 
it  would  have  been  legitimate  to  favor  one  citizen  at  the  expense  of 
another.    If  a  state  should  build  and  operate  a  railroad,  the  exclusion 

1  The  statement  of  facts  has  been  rewritten  and  parts  of  the  opinion 
omitted. 


Ch.  4)  EQUALITY   OF    SERVICE.  575 

of  everything-  like  favoritism  with  respect  to  its  use  would  seem  to  be 
an  obligation  that  could  not  be  disregarded  without  violating  natural 
equity  and  fundamental  principles.  *  *  *  In  their  very  nature  and 
constitution,  as  I  view  this  question,  these  companies  become,  in  cer- 
tain aspects,  public  agents,  and  the  consequence  is  they  must,  in  the 
exercise  of  their  calling,  observe  to  all  men  a  perfect  impartiality." 
Messenger  v.  Pennsylvania  R.  Co.,  36  N.  J.  Law,  407,  13  Am.  Rep. 
457. 

*  *  *  It  will  be  observed  that  the  gist  of  plaintiffs'  contention 
is  not  so  much  that  the  latter  are  charged  a  rate  of  compensation  for 
transportation  unreasonable  in  itself,  as  that  by  charging  a  lower  rate  to 
their  more  favored  competitor  the  latter  is  enabled  to  and  is  supplying 
the  market  at  a  price  with  which  the  plaintiffs  cannot  compete,  and  thus 
driving  them  out  of  the  market  and  destroying  the  business  and  trade 
they  have  built  up.  One  of  the  questions  at  issue  between  the  parties 
is :  What  was  the  doctrine  of  the  common  law  upon  the  question  of 
the  compensation  of  a  common  carrier?  Could  the  freighter  require 
anything  more  than  that  he  be  charged  no  more  than  a  reasonable 
compensation,  or  could  he  demand  and  have  his  goods  transported  at 
an  equal  rate  with  the  favored  customer? 

In  many  cases  it  has  been  held  that  the  customer  was  only  entitled 
to  have  his  goods  shipped  at  a  reasonable  rate,  and  not  necessarily  at 
an  equal  rate  with  others,  and  that  he  was  not  interested  in  the  matter 
that  somebody  else  was  charged  less.  Or  in  the  incisive  language  of 
Crompton,  J.,  to  counsel  in  an  English  case :  "The  charging  another 
person  too  little  is  not  charging  you  too  much." 

The  question,  so  far  as  it  related  to  railroads,  was  settled  by  statute 
in  England  shortly  after  their  introduction  there;  and  under  the 
"equality  clause"  of  the  English  statutes  railroad  companies  were 
bound  to  charge  equally  to  all  persons  in  respect  to  all  goods  under 
hke  circumstances.  Pickford  v.  Grand  Junction  R.  Co.,  10  Mees.  & 
W.  399 ;  Baxendale  v.  London  &  Southwestern  Railway  Company,  L. 
R.  1  Ex.  137;  L.  &  N.  W.  R.  Co.  v.  Evershed,  26  W.  R.  863.   *     *     * 

In  discussing  the  English  "equality  statute"  before  adverted  to, 
Beasley,  C.  J.,  pronouncing  the  opinion  of  the  Supreme  Court  of  New 
Jersey,  says:  "But  the  courts  of  Pennsylvania  have  repeatedly  declar- 
ed that  this  act  was  but  declaratory  of  the  doctrine  of  the  common 
law.  *  *  *  In  a  more  recent  decision  "Sir.  Justice  Strong  says  that 
the  special  provisions  which  are  sometimes  inserted  in  railroad  char- 
ters in  restraint  of  undue  preferences  are  'but  declaratory  of  what  the 
common  law  now  is.'  This  is  the  view  which,  for  reasons  already 
given,  I  deem  correct."  Messenger  v.  Pennsylvania  R.  Co.,  36  N.  J. 
Law,  407-412,  13  Am.  Rep.  457. 

In  some  of  the  cases  it  is  announced  that  the  question  of  whether 
the  law  requires  the  common  carrier  to  transport  goods  upon  equal 
terms  to  all,  or  whether  it  only  requires  that  the  rate  shall  be  reason- 
able, but  not  necessarily  equal  to  all,  has  been  dift'erently  determined 


576  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

by  the  courts  of  England  and  America.    Ragan  v.  Aiken,  9  Lea  (Tenn.) 
609,  43  Am.  Rep.  684. 

But,  be  that  as  it  may,  the  tendency  and  undoubted  weight  of  au- 
thority is  in  favor  of  the  doctrine  that  a  common  carrier  is  charged 
with  a  quasi  pubhc  duty  to  transport  merchandise  on  equal  terms,  for 
all  parties,  where  the  carrying  for  some  shippers  at  a  lower  price  than 
for  others  will  create  monopoly  by  injuring  or  destroying  the  busi- 
ness of  those  less  favored.  "An  agreement  by  a  railroad  company  to 
carry  goods  for  certain  persons  at  a  cheaper  rate  than  they  will  carry 
under  the  same  conditions  for  others  is  void  as  creating  an  illegal 
preference."  Messenger  v.  Pennsylvania  R.  Co.,  supra.  The  Chief 
Justice  (page  410  of  36  N.  J.  Law  [13  Am.  Rep.  457])  says:  "It  can- 
not be  denied  that  at  the  common  law  every  person  under  identical 
conditions  had  an  equal  right  to  the  services  of  their  commercial 
agents.  It  was  one  of  the  primary  obligations  of  the  common  carrier 
to  receive  and  carry  all  goods  offered  for  transportation,  upon  receiv- 
ing a  reasonable  hire.  If  he  refused  the  ofifer  of  such  goods,  he  was 
liable  to  an  action,  unless  he  could  show  a  reasonable  ground  for  his 
refusal.  Thus  in  the  very  foundation  and  substance  of  the  business 
there  was  inherent  a  rule  which  excluded  a  preference  of  one  con- 
signor of  goods  over  another.  The  duty  to  receive  and  carry  was 
due  to  every  member  of  the  community,  and  in  an  equal  measure  to 
each.  *  *  *  Recognizing  this  as  the  settled  doctrine,  I  am  not 
able  to  see  how  it  can  be  admissible  for  a  common  carrier  to  demand* 
a  different  hire  from  various  persons  for  an  identical  kind  of  service 
under  identical  conditions.  Such  partiality  is  legitimate  in  private 
business,  but  how  can  it  square  with  the  obligations  of  a  public  em- 
ployment? A  person  having  a  public  duty  to  discharge  is  undoubtedly 
bound  to  exercise  such  office  for  the  equal  benefit  of  all,  and  therefore 
to  permit  the  common  carrier  to  charge  various  prices,  according  to 
the  person  with  whom  he  deals,  for  the  same  services,  is  to  forget  that 
he  owes  a  duty  to  the  community.  *  *  *  The  law  that  forbids 
him  to  make  any  discrimination  in  favor  of  the  goods  of  A.  over  the 
goods  of  B.,  when  the  goods  of  both  are  tendered  for  carriage,  must, 
it  seems  to  me,  necessarily  forbid  any  discrimination  with  respect  to 
the  rate  of  pay  for  the  carriage.  *  *  *  The  rule  that  the  carrier 
shall  receive  all  the  goods  tendered  loses  half  its  value  as  a  politic 
regulation,  if  the  cost  of  transportation  can  be  graduated  by  special 
agreement  so  as  to  favor  one  party  at  the  expense  of  the  other." 
*     *     * 

The  case  of  Hays  v.  Pennsylvania  Company  (C.  C.)  12  Fed.  309, 
decided  by  Baxter,  J.,  in  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  Ohio,  is  important  in  respect  to  one  element  in 
this  case.  The  defendant  in  the  case  at  bar  claims  that  it  was  proper 
to  enter  into  the  contract  it  did  with  the  Standard  Oil  Company,  on 
account  of  the  very  large  amount  of  freightage  that  company  annu- 


Ch.  4)  EQUALITY  OF    SERVICE.  577 

ally  furnishes,  and  that  it  was  lawful  to  discriminate  in  their  favor  on 
that  account.  The  plaintiffs  in  that  case  had  been  engaged  for  several 
years  in  mining  and  shipping  coal  from  Salineville,  and  the  defend- 
ant's railroad  furnished  them  with  their  only  means  of  getting  their 
coal  to  market.  The  railroad  company  discriminated  in  favor  of  every 
shipper  who  shipped  5,000  tons  or  over,  and  the  discrimination  was 
from  30  to  70  cents  per  ton,  graduated  by  the  amount  shipped. 

Plaintiffs  were  required  to  and  did  under  the  discrimination  pay  a 
higher  rate  than  their  more  favored  competitors.  They  brought  suit  to 
recover  for  the  discrimination,  and  under  the  instructions  of  the  trial 
judge  the  jury  returned  a  verdict  for  plaintiffs.  The  judge  on  a  motion 
for  a  new  trial  said:  "The  defendant  is  a  common  carrier  by  rail. 
It's  road,  though  owned  by  the  corporation,  was  nevertheless  construct- 
ed for  public  uses,  and  is,  in  a  qualified  sense,  a  public  highway. 
Hence  everybody  constituting  a  part  of  the  public,  for  whose  benefit  it 
was  authorized,  is  entitled  to  an  equal  and  impartial  participation  in 
the  use  of  the  facilities  it  is  capable  of  affording.  *  *  *  The  dis- 
crimination complained  of  rested  exclusively  on  the  amount  of  freight 
supplied  by  the  respective  shippers  during  the  year.  Ought  a  dis- 
crimination resting  exclusively  on  such  a  basis  to  be  sustained?  If  so, 
then  the  business  of  the  country  is  in  some  degree  subject  to  the  will 
of  railroad  officials;  for  if  one  man  engaged  in  mining  coal,  and  de- 
pendent upon  the  same  railroad  for  transportation  to  the  same  market, 
can  obtain  transportation  thereof  at  from  25  to  50  cents  per  ton  less 
than  another  competing  with  him  in  business,  solely  on  the  ground 
that  he  is  able  to  furnish,  and  does  furnish,  the  larger  quantity  for 
shipment,  the  small  operator  will,  sooner  or  later,  be  forced  to  abandon 
the  unequal  contest,  and  surrender  to  his  more  opulent  rival.  If  the 
principle  is  sound  in  its  application  to  rival  parties  engaged  in  mining 
coal,  it  is  equally  applicable  to  merchants,  manufacturers,  millers, 
dealers  in  lumber  and  grain,  and  to  everybody  else  interested  in  any 
business  requiring  any  considerable  amount  of  transportation  by  rail : 
and  it  follows  that  the  success  of  all  such  enterprises  would  depend  as 
much  on  the  favor  of  railroad  officials  as  upon  the  energies  and  capaci- 
ties of  the  parties  prosecuting  the  same.  It  is  not  difficult  with  such  a 
ruling  to  forecast  the  consequences.  The  men  who  control  railroads 
would  be  quick  to  appreciate  the  power  with  which  such  a  holding 
Avould  invest  them,  and,  it  may  be,  not  slow  to  make  the  most  of  their 
opportunities,  and,  perhaps,  tempted  to  favor  their  friends  to  the  detri- 
ment of  their  personal  or  political  opponents,  or  demand  a  division 
of  the  profits  realized  from  such  collateral  pursuit's  as  could  be  favored 
or  depressed  by  discriminations  for  or  against  them,  or  else,  seeing 
the  augmented  power  of  capital,  organize  into  overshadowing  combina- 
tions, and  extinguish  all  petty  competition,  monopolize  business,  and 
dictate  the  price  of  coal  and  every  other  commodity  to  consumers.  We 
say  these  results  might  follow  the  exercise  of  such  a  right  as  is  claimed 
Green  Oabb. — 37 


578  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

for  railroads  in  this  case.  But  we  think  no  such  power  exists  in  them. 
They  have  been  authorized  for  the  common  benefit  of  every  one,  and 
cannot  be  lawfully  manipulated  for  the  advantage  of  any  class  at  the 
expense  of  any  other.  Capital  needs  no  such  extraneous  aid.  It  pos- 
sesses inherent  advantages  which  cannot  be  taken  from  it.  But  it  has 
no  just  claim,  by  reason  of  its  accumulated  strength,  to  demand  the 
use  of  the  public  highways  of  the  country,  constructed  for  the  common 
benefit  of  all,  on  more  favorable  terms  than  are  accorded  to  the  hum- 
blest of  the  land ;  and  a  discrimination  in  favor  of  parties  furnishing 
the  largest  quantity  of  freight,  and  solely  on  that  ground,  is  a  dis- 
crimination in  favor  of  capital,  and  is  contrary  to  a  sound  public  poli- 
cy, violative  of  that  equality  of  right  guaranteed  to  every  citizen,  and 
a  wrong  to  the  disfavored  party,  for  which  the  courts  are  competent 
to  give  redress." 

The  District  Court,  in  their  finding  IOI/2,  state  that  shipment  by  the 
car  load  was  the  manner  in  which  nearly  all  the  business  was  done ; 
that,  on  the  request  of  either  party  to  furnish  cars,  the  defendant  had 
them  switched  to  the  refineries,  and  after  being  loaded  were  switched 
back  and  placed  on  defendant's  tracks  for  shipment  on  its  road.  The 
manner  of  making  shipments  for  plaintiffs,  and  for  the  Standard  Oil 
Company,  was  precisely  the  same,  and  the  only  thing  to  distinguish 
the  business  of  the  one  from  the  other  was  the  aggregate  yearly 
amounts  of  freight  shipped.  We  adopt  the  reasoning  of  Baxter,  J., 
as  the  better  law,  and  hold  that  a  discrimination  in  the  rate  of  freights 
resting  exclusively  upon  such  a  basis  ought  not  to  be  sustained.   *    *   * 

We  think  the  authorities  abundantly  show  that  in  a  case  like  the 
one  at  bar  the  plaintiffs  can  seek  relief  by  injunction,  and  that  it  is  an 
appropriate  method  to  determine  the  rights  of  the  parties  here  with- 
out first  resorting  to  an  action  at  law.  The  plaintiffs  have  a  manu- 
facturing capacity  of  150,000  barrels  per  year.  Shall  they  be  com- 
pelled to  bring  a  separate  action  for  each  car  load?  What  number 
of  suits  would  it  require?  Are  the  damages  of  plaintiffs  for  loss  of 
profits  susceptible  of  easy  proof,  or  even  capable  of  any  exact  estima- 
tion ?  We  think  the  plaintiffs  have  a  clear  and  undoubted  right  to  come 
into  a  court  of  equity  and  have  the  rights  of  the  parties  determined  in 
a  single  action.     *     *     * 

The  railroad  is  an  entirety,  whether  within  the  state  or  without, 
and  the  artificial  person,  by  the  acts  of  the  several  states  authorizing 
consolidation,  has  been  created  one,  and  not  two  or  more;  and  no 
reason  is  perceived  why  it  may  not  be  dealt  with  by  the  courts  of  either 
state  that  has  procured  jurisdiction. 

This  artificial  person  not  only  holds  itself  out,  but  does  make  con- 
tracts for  the  transportation  of  freight  over  its  connecting  lines  as 
well  as  its  own  line,  and  it  makes  rates  to  points  only  reached  by  con- 
necting lines.  No  reason  is  perceived  why  it  should  not  be  ordered 
to  make  no  discriminations  to  the  injury  of  plaintiffs  in  its  rates  to 


Ch.  4)  EQUALITY   OF    SERVICE.  579 

points  thus  reached ;  but,  if  it  makes  rates  to  points  on  connecting  lines, 
the  rates  should  be  equal  to  all.    The  order  of  the  court  is  that  the  de- 
fendant be  restrained,  as  prayed  for  in  plaintiffs'  petition. 
Judgment  accordingly. 


HILTON  LUMBER  CO.  v.  ATLANTIC  COAST  LINE  R.  CO. 

(Supreme  Court  of  North  Carolina,  1906.    141  N.  C.  171,  53  S.  E.  823,  6  L. 

R.  A.  [N.  S.]  22.J.) 

Plaintiff  sued  for  the  recovery  of  $3,865.26,  alleged  to  have  been 
unlawfully  demanded  and  paid  defendant  company  on  account  of 
discriminating  overcharges  for  shipment  of  logs  over  defendant's 
road  from  the  15th  day  of  November,  1898,  to  the  30th  day  of  April, 
1901.  *  *  *  Verdict  was  rendered  upon  the  issues,  and  there  was 
judgment  for  plaintiff.    Defendant  excepted,  and  appealed. 

Connor,  J.-  *  *  *  'pj-^g  cause  was  heard  and  determined,  as 
appears  from  the  record,  upon  the  sole  question  whether  during  the 
periods  named  in  the  complaint  defendant  company  demanded  and 
received  payment  from  plaintiff  a  rate  of  freight  in  excess  of  that 
charged  other  persons  or  corporations  for  the  same  service  under  sub- 
stantially similar  conditions.  The  learned  counsel  in  his  brief  says : 
"The  action  is  not  in  tort,  but  ex  contractu.  Plaintiff  charges  that  the 
defendant  required  it  to  pay  $2.50  per  thousand  feet  for  hauling  logs 
in  car  load  lots  a  distance  of  40  miles  when  defendant  had  a  regular, 
established,  and  published  rate  for  other  portions  of  its  line  *  *  * 
of  $2.10  for  the  same  service,  and  the  same  rates  applied  at  Wilmington 
for  all  who  would  agree  to  give  the  defendant  the  output  of  their 
mills."     *     *     * 

The  agreement  referred  to  in  the  complaint  is  eliminated  by  plain- 
tiff's averment  that  it  is  suing  to  enforce  its  right  at  common  law,  of 
which  section  3749  of  the  Revisal  of  1905  is  but  declaratory,  to  have 
equality  in  rates,  etc.  It  will  be  observed,  as  said  by  Clark,  C.  J.,  in 
Lumber  Co.  v.  Railroad  Co.,  136  N.  C.  479.  487,  48  S.  E.  813,  816, 
that  this  statute  is  substantially  like  that  portion  of  the  English  traffic 
act  known  as  the  "equality  clause"  and  the  interstate  commerce  act. 
These  and  similar  statutes  are  said  by  many  of  the  courts  to  be  but 
declaratory  of  the  common  law,  which  required  all  public  carriers  to 
serve  all  persons  at  reasonable  rates  and  upon  equal  terms  under  simi- 
lar circumstances.  However  that  may  be,  the  fundamental  purpose 
underlying  all  of  this  legislation  both  in  England  and  this  country,  is, 
as  said  by  Mr.  Justice  White,  in  Railroad  Co.  v.  Interstate  Com.  Com- 
mission, 200  U.  S.  361,  26  Sup.  Ct.  272,  50  L.  Ed.  515,  that:   "Whilst 

2  The  statement  has  been  abbreviated,  and  parts  of  the  opinion  have  been 
omitted. 


580  THE  COMMON    CARRIER'S   DUTY   TO  SERVE.  (Part  5 

seeking  to  prevent  unjust  and  unreasonable  rates,  to  secure  equality  of 
rates  as  to  all  and  destroy  favoritism,  these  last  being  accomplished  by 
requiring  the  publication  of  tariffs  and  by  prohibiting  secret  departures 
from  such  tariffs,  and  forbidding  rebates,  preferences,  and  all  other 
forms  of  unjust  discrimination,  to  this  extent  and  for  these  purposes, 
the  statute  is  remedial  and  is,  therefore,  entitled  to  receive  that  in- 
terpretation which  reasonably  accomplishes  the  great  public  purpose 
which  it  was  enacted  to  subserve.  *  *  *  What  was  that  purpose? 
It  was  to  compel  the  carrier  as  a  public  agent  to  give  equal  treatment 
to  all."     *     *     * 

Defendant  operating  several  lines  or  branches  of  railroad  in  East- 
ern North  Carolina,  upon  which  are  located  several  sawmills  deriving 
their  supply  of  logs  over  such  lines  as  are  convenient  to  them,  main- 
tains a  tariff*  by  which  it  charges  mills  in  Wilmington  $2.50  per  thou- 
sand feet  for  car  load  lots  a  distance  of  39  miles  and  mills  at  other 
points  $2.10  for  the  same  service,  the  difference  being  that  it  handles 
the  manufactured  products  of  the  logs  thus  shipped  at  points  other 
than  Wilmington  and  was  willing  to  make  the  same  rates  effective  to 
the  Wilmington  mill  on  the  logs  of  which  it  handled  the  product. 

Thus  stated,  assuming  the  other  conditions  to  be  substantially  simi- 
lar, is  the  discrimination  unlawful?  The  question  is  answered  by 
this  court  in  the  defendant's  appeal  at  the  fall  term,  1904,  supra.  Clark, 
C.  J.,  says :  "The  proposition  is  that  a  common  carrier  has  a  right  to 
charge  one  person  a  lower  rate  of  freight  than  another  for  shipping 
the  same  quantity  the  same  distance,  under  the  same  conditions,  pro- 
vided the  shipper  give  the  company  a  consideration  (shipping  the  man- 
ufactured lumber  subsequently  over  its  line),  which  its  managers  think 
will  make  good  to  it  the  abatement  of  rate  given  to  such  parties.  But 
if  this  is  equality  as  to  the  treasury  of  the  company,  it  is  none  the  less  a 
discrimination  against  the  plaintiff'."  The  authorities  are  reviewed  in 
the  opinion,  and  we  have  no  disposition  to  disturb  the  reasoning  or 
conclusion  reached  on  that  appeal.     *     *     * 

The  real  controversy  made  upon  the  first  appeal,  and  again  present- 
ed upon  this  record,  is  whether,  assuming  the  facts  to  be  as  plaintiff 
claims,  the  defendant  could  give  a  lower  rate  to  such  of  its  customers 
as  shipped  the  manufactured  product  of  the  logs  over  its  line ;  and,  as 
we  have  seen,  that  question  has  been  decided  adversely  to  the  defend- 
ant's contention.  The  only  case  to  which  our  attention  has  been  di- 
rected which  would  tend  to  sustain  the  contention  is  the  L.  &  N.  R. 
Co.  V.  Com'n,  108  Ky.  628,  57  S.  W.  508,  decided  by  the  Supreme 
Court  of  Kentucky.  We  have  examined  that  case  with  care,  and  think 
that  the  dissenting  opinion  of  Paynter,  J.,  in  which  two  of  the  other 
judges  concurred  and  which  fully  sustains  the  view  taken  by  tliis 
court,  and  we  think  supported  by  authority  and  reason,  is  the  sound 
view  of  the  question.  The  defendant  does  not  controvert  the  plain- 
tiff's right  to  recover  for  money  had  and  received,  provided  the  facts 
are  as  alleged.     *     *     * 


Ch.  4)  EQUALITY  OF    SERVICE.  581 

As  said  by  the  Supreme  Court  of  Alabama  in  Mobile  M.  R.  Co.  v. 
Steiner,  61  Ala.  559,  in  an  action  like  this :  "The  nature  of  the  business 
considered,  the  shipper  does  not  stand  on  equal  terms  with  the  carrier 
in  contracting  for  charges  for  transportation  and  if  the  shipper  pays 
the  rates  established  in  violation  of  the  law  to  the  carrier  rather  than 
forego  his  services,  such  payment  is  not  voluntary  in  the  legal  sense 
and  the  shipper  may  maintain  his' action  for  money  had  and  received 
to  recover  back  the  illegal  charge."  There  seems  to  be  no  conflict  of 
authorities  upon  this  question.  His  honor  gave  judgment  for  the 
amount  sued  for  and  interest,  to  which  defendant  excepted.  We  think 
his  honor  was  correct.^     *     *     * 

3  In  Hoover  v.  Pa.  R.  Co.,  156  Pa.  220,  27  Atl.  282,  22  L.  R.  A.  263,  .36  Am. 
St.  Rep.  43  (1893),  a  railroad  carried  coal  for  manufacturers  cheaper  thau 
for  retail  coal  dealers.  The  court  thought  the  difference  justifiable,  and  said: 
"In  point  of  fact  it  is  perfectly  well  known  and  appreciated  that  the  output 
of  freights  from  the  great  manufacturing  centers  upon  our  lines  of  transpor- 
tation constitutes  one  of  the  chief  sources  of  the  revenues  which  sustain  them 
financially.  Yet  no  part  of  this  income  is  derived  from  those  who  are  mere 
buyers  and  sellers  of  coal.  When  the  freight  is  paid  upon  the  coal  they  buy, 
the  revenue  to  be  derived  from  that  coal  is  at  an  end.  Not  so,  however,  with 
the  revenue  from  the  coal  that  is  carried  to  the  manufacturers.  That  coal  is 
consumed  on  the  premises  in  the  creation  of  an  endless  variety  of  products 
which  must  be  put  back  upon  the  transporting  lines,  enhanced  in  bulk  and 
weight  by  the  other  commodities  which  enter  into  the  manufactured  product, 
and  is  then  distributed  to  the  various  markets  where  they  are  sold.  In  addi- 
tion to  this,  a  manufacturing  plant  requires  other  commodities  besides  coal 
to  conduct  its  operations,  whereas  a  coal  dealer  takes  nothing  but  his  coal, 
and  the  freight  derived  by  the  carrier  from  the  transportation  of  these  com- 
modities forms  an  important  addition  to  its  traffic,  and  constitutes  a  condi- 
tion of  the  business  which  has  no  existence  in  the  business  of  canning  coal  to 
those  who  are  coal  dealers  only.  *  *  *  Another  important  incident  which 
distinguishes  them  is  that  the  establishment  of  manufacturing  industries,  and 
the  conducting  of  their  business,  necessitates  the  emploj-ment  of  numbers  of 
workmen  and  other  persons  whose  services  are  needed,  and  these,  with  their 
families,  create  settlements  and  new  centers  of  population,  resulting  in  vil- 
lages, towns,  boroughs,  and  cities,  according  to  the  extent  and  variety  of  the 
industries  established,  and  all  these,  in  turn,  furnish  new  and  additional 
traffic  to  the  lines  of  transportation.  But  nothing  of  this  kind  results  from 
the  mere  business'of  coal  selling." 

In  State  v.  Central  Vt.  Ry.  Co.,  81  Vt.  4a3.  71  Atl.  194  (1908).  where  a  stat- 
ute required  railroads  to  give  reasonable  and  equal  terms  to  all,  and  gave  an 
action  for  damages  to  any  person  aggrieved  by  a  violation  thereof,  a  declar- 
ation was  held  bad  on  demurrer  which  alleged  that  defendant  carried  coal 
for  a  certain  coal  dealer  at  50  cents  a  ton  less  than  it  charged  all  others, 
thereby  compelling  plaintiff,  the  state,  to  buy  coal  for  its  asylum  of  such 
dealer  and  at  a  higher  price  than  it  would  have  paid  if  able  to  get  trans- 
portation at  equal  rates.  The  court  held  the  statute  to  be  declaratory  of  the 
common  law,  and  said:  "The  fact  that  the  rates  charged  in  this  case  were 
less  than  those  charged  to  others  does  not  entitle  the  plaintiff  to  a  judg- 
ment; for,  as  has  been  shown,  the  rates  charged  may  have  been  reasonable 
and  equal  within  the  meaning  of  the  law,  though  less  in  amount." 

In  Menacho  v.  "Ward  (C.  C.)  27  Fed.  529  (18S6),  a  steamship  company  was 
enjoined  from  advancing  its  rates  to  shippers  by  rival  ve.ssels. 

In  Lough  V.  Outerbridge,  143  N.  Y.  271.  38  N.  E.  292,  2.5  L.  R.  A.  674,  42 
Am.  St.  Kep.  712  (1S94),  a  company  which  ran  a  line  of  steamers  to  islands 
in  the  Caribbean  Sea  offered  to  all  who  would  agree  to  ship  to  Barbadoes 
by  it  exclusively  to  give  a  greatly  reduced  rate  at  any  time  when  a  certain 
competing  steamer  should  be  loading  for  that  island.  It  was  held  that  per- 
sons unwilling  to  make  the  agreement  were  not  entitled  to  the  reduced  rate. 


582  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

UNITED   STATES   ex   rel.   PITCAIRN   COAL  CO.  v.   BALTI- 
MORE &  O.  R.  CO. 

(Circuit  Court  of  Appeals,  Fourtti  Circuit.  1908.     IG.j  Fed.  113.  91  C.  C.  A.  147.) 

The  relator  filed  in  the  Circuit  Court  a  petition  for  mandamus  to 
require  defendant  railroad  company  to  cease  from  subjecting  relator 
and  other  coal  companies  on  its  lines  to  undue  and  unreasonable  dis- 
crimination in  the  shipping  and  transportation  of  coal.  The  petition 
charged  that  in  its  distribution  of  cars  the  railroad  had  subjected  re- 
lator and  other  so-called  "independent"  operators  to  undue  and  unrea- 
sonable prejudice,  and  had  given  other  companies  undue  and  unreason- 
able preference.  It  particularly  alleged  that  the  supply  of  coal  cars 
was  usually  insufficient  to  fill  all  orders,  and  that  at  such  times  the  rail- 
road claimed  to  distribute  available  cars  as  follows :  Cars  for  its  own 
fuel  or  supply  coal  it  placed  as  it  saw  fit ;  cars  sent  by  other  railroads 
for  their  fuel  or  supply  coal  it  placed  at  the  mines  to  which  they  were 
sent ;  cars  belonging  to  coal  companies  or  operators,  called  "individual" 
cars,  it  placed  at  the  mines  of  their  owners ;  other  cars  it  divided 
among  the  mines,  so  as  to  give  to  each  mine  an  allotted  percentage  of 
such  cars,  which  percentage  was  based  upon  the  quantity  of  the  mine's 
previous  shipments,  as  well  as  on  its  present  capacity  for  shipping. 
and  was  not  reduced,  though  individual  or  railroad  fuel  cars  had  also 
been  placed  at  the  mine.  Defendant  denied  the  allegations  of  undue 
preference  and  discrimination.  The  case  by  consent  was  tried  without 
a  jury.  The  court  held  the  railroad  guilty  of  undue  preference  in  not 
charging  the  individual  cars  against  the  percentage  allotted  to  mines 
which  used  them,  and  ordered  that  mandamus  issue  requiring  such 
charge  to  be  made,  but  in  all  other  respects  overruling  relator's  com- 
plaint.   Each  party  sued  out  a  writ  of  error. 

PriTchard,  Circuit  Judge.*  *  *  *  jj.  jj,  sought  by  this  proceed- 
ing to  secure  the  enforcement  of  the  provisions  contained  in  section  3 
of  the  interstate  commerce  act  (Act  Feb.  4,  1887,  c.  104.  24  Stat.  380 
[U.  S.  Comp.  St.  1901,  p.  3155])  and  section  1  of  the  act  as  amended 
June  29,  1906  (34  Stat.  584,  c.  3591  [U.  S.  Comp.  St.  Supp.  1907.  p. 
892]).  The  amendment  to  the  latter  section  is  as  follows:  "It  shall 
be  the  duty  of  every  carrier  subject  to  the  provisions  of  this  act  to 

In  Root  Y.  Long-  Island  R.  Co.,  114  N.  Y.  300,  21  N.  E.  403,  4  L.  R.  A.  331, 
11  Am.  St.  Rep.  (>43  (1889),  an  agreement  to  give  a  rebate  of  15  cents  a  ton 
on  coal,  in  consideration  of  the  shipper's  undertaking,  duly  performed,  to 
build  a  dock  and  coal  pocket  on  the  railroad's  premises,  a  part  of  which  the 
railroad  might  use  in  its  general  business,  was  enforced. 

In  Hundred  v.  Rice,  49  Ohio  St.  640,  32  N.  E.  1G9,  39  Am.  St.  Rep.  589  (1892), 
an  agreement  to  give  to  a  certain  shipper  of  petroleum,  if  he  would  build  a 
pipe  line  to  the  place  of  shipment,  a  lower  rate  than  that  charged  to  others, 
was  held  invalid. 

4  The  statement  of  facts  is  based  on  facts  stated  in  the  opinion.  Parts 
of  the  opinion  have  been  omitted. 


Ch.  4)  EQUALITY   OF    SERVICE.  583 

provide  and  furnish  such  transportation  upon  a  reasonable  request 
therefor." 

By  reference  to  the  body  of  this  section  it  will  be  seen  that  the  word 
"such"  refers  to  the  previous  sentence  of  the  act,  which,  among  other 
things,  provides  that:  "The  term  'transportation'  shall  include  cars 
and  other  vehicles  and  all  instrumentalities  and  facilities  of  shipment 
or  carriage,  irrespective  of  ownership  or  of  any  contract,  express  or  im- 
plied, for  the  use  thereof,  and  all  services  in  connection  with  the  re- 
ceipt, delivery,  elevation  and  transfer  in  transit,  storage  and  handling 
of  property  transported."     *     *     * 

Section  3  of  the  act  provides  that:  "It  shall  be  unlawful  for  any 
common  carrier  subject  to  the  provisions  of  this  act  to  make  or  give 
any  undue  or  unreasonable  preference  or  advantage  to  any  particular 
person,  company,  firm,  corporation,  or  locality,  or  any  particular  de- 
scription of  traffic,  in  any  respect  whatsoever,  or  to  svibject  any  par- 
ticular person,  company,  firm,  corporation  or  locality,  or  any  particu- 
lar description  of  traffic,  to  any  undue  or  unreasonable  prejudice  or 
disadvantage  in  any  respect  whatsoever."    *     *     * 

In  passing  upon  the  questions  involved,  it  should  be  borne  iti  mind 
that  the  statute  casts  upon  the  carrier  the  plain  duty  of  furnishing  a 
fair  and  equal  distribution  of  facilities  to  the  shipper.  The  duty  thus 
enjoined  cannot  be  evaded  by  the  carrier  by  claiming  that  it  is  not  the 
owner  of  a  portion  of  the  cars  carried  over  its  lines.  The  duty  of  fur- 
nishing equal  facilities  relates  to  and  involves  purely  the  question  of 
transportation,  and  when  we  are  called  upon  to  determine  as  to  whether 
in  any  particular  instance  there  has  been  an  undue  and  unreasonable 
discrimination  or  preference  as  contemplated  by  the  statute,  the  sole 
question  is  as  to  whether  the  entire  equipment  operated  over  the  lines 
of  the  carrier  has  been  fairly  and  equally  distributed  among  all  the 
shippers  along  its  lines  who  are  similarly  situated.  The  defendant 
mine  owners  insist  that  in  the  purchase  of  individual  cars  they  have 
expended  a  considerable  sum  of  money,  which  thereby  becomes  a  part 
of  their  investment  and  should  be  treated  as  such,  and  that  it  would  be 
unfair  to  them  to  require  the  carrier  to  charge  such  cars  as  a  part  of 
the  percentage  to  which  they  are  entitled.     *     *     * 

If,  as  in  this  instance,  a  carrier,  by  contractual  arrangement,  oper- 
ates individual  cars  belonging  to  mine  owners  as  a  part  of  its  equip- 
ment, such  arrangement  cannot  in  the  slightest  degree  relieve  the 
carrier  of  the  duty  to  furnish  equal  facilities  to  all  shippers  similarly 
situated.  To  adopt  any  other  rule  would  be  to  make  it  possible  for 
wealthy  mine  owners,  by  the  purchase  of  car  equipment,  to  utilize  the 
means  of  transportation  operated  by  the  carrier  to  such  an  extent  as 
to  practically  deprive  other  mine  owners  similarly  situated  of  any 
means  of  transportation,  and  it  was  to  avoid  this  very  kind  of  discrim- 
ination that  the  provisions  of  sections  1  and  3  of  the  interstate  com- 
merce act  were  enacted.     *     *     * 


584  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

It  is  insisted  that  the  Fairmont  Company  has  large  contracts,  and 
therefore  it  must  have  a  preference  in  cars  by  which  it  might  keep  its 
contracts.  This  contention  is  untenable.  If  this  condition  of  affairs 
could  be  pleaded  in  justification  of  a  discrimination  in  favor  of  a  par- 
ticular mine  owner  on  the  part  of  the  carrier,  then  the  provisions  of 
sections  1  and  3  of  the  act  would  be  without  force,  and  those  mine 
owners  who  were  favored  by  the  carrier  with  an  unlimited  supply  of 
car  service  would  be  in  a  position  to  go  upon  the  market  and  solicit 
business  with  little  or  no  competition,  thereby  rendering  it  impossible 
for  the  weaker  companies  to  successfully  compete  in  the  open  market 
with  their  more  favored  competitors.     *     *     * 

At  common  law  the  carrier  is  required  to  furnish  to  all  shippers, 
regardless  of  the  question  of  profit  to  itself,  like  facilities  without  any 
discrimination,  and  any  contract  which  does  not  comply  with  these 
principles  is  void  as  against  public  policy.  A  carrier  cannot  give  a 
shipper  a  preference  in  order  that  it  might  profit  thereby ;  neither  can 
it  give  the  shipper  a  preference  in  order  that  the  shipper  may  profit 
thereby,  and,  when  called  upon  by  the  individual  shipper  for  full  car 
service,  the  only  defense  which  the  carrier  can  interpose  in  case  of 
failure  to  comply  with  the  request  of  the  shipper  is  that  the  supply 
which  it  has  furnished  is  sufficient  for  normal  demands,  and  that  in 
times  of  stress  it  has  fairly  and  impartially  prorated  all  of  its  car 
equipment.  If  it  should  appear  in  any  such  case  that  any  particular 
shipper  was  given  preference  in  excess  in  his  pro  rata  share  of  its 
cars,  then  such  preference  would  necessarily  be  an  "undue  prefer- 
ence" at  common  law.  That  portion  of  the  interstate  commerce  act 
which  relates  to  undue  preference  is  declaratory  of  the  common  law, 
and,  when  considered  in  connection  therewith,  we  are  forced  to  the 
conclusion  that  any  undue  preference  which  is  based  upon  the  theory 
that  the  preference  is  made  with  a  view  of  promoting  the  interests 
either  of  a  shipper  or  a  carrier,  without  due  regard  to  the  interests  of 
shippers  who  are  similarly  situated,  is  violative  of  the  sections  under 
which  this  suit  was  instituted.     *     *     * 

Having  disposed  of  the  questions  involved  in  the  defendants'  writ 
of  error,  we  will  now  consider  those  matters  assigned  as  error  by  the 
relator. 

The  court  below,  in  dealing  with  the  question  relative  to  the  fuel 
cars  of  the  Baltimore  &  Ohio  Railroad  Company  and  foreign  railroad 
cars,  held  that  they  were  not  to  be  charged  against  the  companies 
using  them  as  a  part  of  the  percentage  to  which  they  were  entitled  un- 
der the  arrangement  agreed  upon  to  which  reference  has  heretofore 
been  made.  A  'careful  consideration  of  this  phase  of  the  question 
forces  us  to  the  conclusion  that  the  fuel  cars  of  the  carrier,  its  regular 
equipment  of  cars,  the  cars  of  other  roads  sent  in  for  fuel,  and  the 
private  or  individual  cars  of  the  mining  operators  should  be  placed 
absolutely  upon  the  same  basis  in  so  far  as  the  distribution  of  car  serv- 
ice by  the  carrier  is  concerned.    *     *     * 


Ch.  4)  EQUALITY  OF    SERVICE.  585 

It  is  manifest  that  it  was  the  purpose  of  Congress  to  prevent  rail- 
road companies  from  resorting  to  such  means  in  order  to  evade  the 
requirements  of  the  act,  to  wit,  a  fair  and  equal  distribution  of  facili- 
ties among  shippers  similarly  situated.  In  determining  as  to  whether 
there  has  been  an  undue  and  unreasonable  preference  in  any  particular 
instance,  the  sole  question  to  be  considered  is  as  to  whether  all  the 
cars  hauled  over  the  carrier's  lines  have  been  prorated  so  as  to  give 
each  and  every  shipper  on  its  lines  his  proportionate  share  of  facilities 
to  which  he  is  entitled  on  the  basis  agreed  upon  as  the  means  by  which 
there  should  be  a  fair  and  equal  distribution  of  such  car  service. 
Therefore,  when  we  consider  the  statute,  the  provisions  of  which  are 
plain  and  unmistakable,  we  are  impelled  to  the  conclusion  that  the  ar- 
bitrary allotment  of  the  fuel  cars  .of  the  company  and  foreign  fuel 
cars  is  violative  of  the  provisions  of  the  act.  Section  1,  among  other 
things,  provides  that :  "Cars  shall  be  furnished  irrespective  of  owner- 
ship or  any  contract,  express  or  implied,  for  the  use  thereof." 

This  makes  it  the  duty  of  the  company  to  furnish  cars,  regardless 
of  ownership  or  of  any  contract,  express  or  implied.  Therefore  the 
question  as  to  the  ownership  of  the  cars  or  the  purposes  for  which 
they  are  used  can  have  no  bearing  in  this  controversy.     *     *     * 

In  determining  the  number  of  cars  to  which  the  various  companies 
on  the  line  of  the  Baltimore  &  Ohio  Railroad  Company  are  entitled, 
the  percentages  are  based,  first,  on  the  capacity  of  the  mine;  second, 
on  the  previous  shipments,  the  capacity  being  allowed  to  count  as 
one  and  the  shipments  as  two  in  ascertaining  the  percentages.  The 
capacity  of  each  mine  is  ascertained  by  a  personal  inspection  by  the  in- 
spector of  mines  of  the  Baltimore  &  Ohio  Railroad  Company.     <*     *     * 

In  the  case  of  United  States  ex  rel.  Kingwood  Coal  Co.  v.  W.  Va. 
No.  R.  R.  Co.  (C.  C.)  125  Fed.  255,  Judge  Goff.  in  a  very  able  and 
exhaustive  opinion  on  this  subject,  in  discussing  the  proper  rule  to  be 
observed  in  working  out  the  most  desirable  basis  for  securing  a  fair 
distribution  of  railroad  cars  to  the  mine  owners,  says :  "I  am  of  the 
opinion  that  in  reaching  a  proper  basis  for  the  distribution  of  railroad 
cars  it  is  necessary  that  an  impartial  and  intelligent  study  of  the  ca- 
pacity of  the  different  mines  be  made  by  competent  and  disinterested 
experts,  whose  duty  it  should  be  to  carefully  examine  into  the  different 
elements  that  are  essentially  factors  in  the  finding  of  the  daily  output 
of  the  respective  mines  which  are  to  share  in  the  allotment.  Amc«ig 
the  matters  to  be  investigated  are  the  following :  The  working  places, 
the  number  of  mine  cars  and  their  capacity,  the  switch  and  tipple  effi- 
ciency, the  number  and  character  of  the  mining  machines  in  use,  the 
hauling  system  and  the  power  used,  the  number  of  miners  and  other 
employes,  the  mine  openings,  and  the  miners'  houses.  No  one  of  these 
various  and  essential  elements  can  safely  be  said  to  be  absolutely  con- 
trolling, though  likely  the  most  important  of  them  all  are  the  real 
working  places,  the  available  points  at  which  coal  can  be  profitably 
mined.    At  each  true  working  place  a  certain  quantity  of  coal,  to  be 


586  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

determined  by  the  thickness  of  the  seam  and  conditions  pecuHar  to  the 
different  coal  fields,  can  be  excavated  and  removed  during  stated  peri- 
ods of  time;  and  so  it  follows  that,  if  other  essentials  are  adequate, 
the  daily  output  of  a  mine  can  be  computed  by  the  number  of  its  avail- 
able working  places." 

Under  the  present  method  of  ascertaining  the  percentage  of  cars  to 
which  the  shipper  is  entitled,  those  shippers  who  are  just  beginning  to 
develop  their  property  are  placed  at  a  great  disadvantage,  and  owing 
to  which  it  is  well-nigh  impossible  for  a  shipper  thus  situated  to  secure 
a  sufificient  allotment  of  cars  as  to  enable  him  to  dispose  of  the  prod- 
uct of  his  mine  in  such  quantities  to  secure  anything  like  a  substan- 
tial development  of  his  property.  Therefore  we  are  of  opinion  that 
such  system  of  coal  mine  rating  is  unfair  and  inequitable  to  new  mines 
located  along  the  line  of  this  railroad  company,  where  there  are  a  num- 
ber of  old  and  established  mines.  To  hold  otherwise  would  be  to  give 
the  Fairmont  Coal  Company  and  other  favored  companies  an  undue 
and  unreasonable  preference,  which,  as  we  have  heretofore  stated,  is 
forbidden  by  the  act,  and  we  are  therefore  of  opinion  that  the  court 
below  erred  in  ruling  that  this  particular  method  was  a  fair  and  rea- 
sonable one.  We  think  the  true  rule  as  to  the  basis  for  the  distribu- 
tion of  cars  is  correctly  stated  by  Judge  Goff  in  the  case  of  United 
States  ex  rel.  Kingwood  Coal  Co.  v.  W.  Va.  No.  R.  R.  Co.,  supra, 
and  that,  in  determining  the  percentage  of  cars  to  which  each  mine  is 
entitled,  the  railroad  company  should  be  guided  solely  by  the  physical 
capacity  of  the  mine  to  furnish  coal  for  shipment.     *     *     * 

Remanded.^ 

]\IcDowELL,  District  Judge,  dissents. 


5  "The  evidence  establishes  that  poles  and  materials  for  the  construction, 
repair,  and  maintenance  of  the  Western  Union  lines  have  been  distributed 
by  the  cars  of  plaintiff  company  between  stations,  and  that  this  has  been 
going  on  for  years,  and  still  goes  on.  It  also  establishes  that  it  has  been  con- 
stantly the  practice  of  defendant  company  to  deliver  freight  for  planters 
and  others  between  stations,  and  to  receive  for  transportation,  at  points 
between  stations,  rice,  sugar.  &c.  *  *  *  Relator,  it  api>ears,  owns  its 
own  cars,  on  which  are  loaded  its  telephone  and  telegraph  poles.  It  ap- 
plied to  defendant  company  to  haul  these  cars  over  its  lines  between  New 
Orleans  and  Shreveport  and  throw  the  poles  off,  or  permit  them  to  be  thrown 
off,  at  convenient  distances.  Other  railroad  companies,  operating  lines  of 
railway  into  and  out  of  New  Orleans,  had  done  this,  and  defendant  company 
does  the  same  for  the  Western  Union  Telegraph  Company,  a  rival  line.  It 
refused  the  service  to  relator.  That  it  is  the  province  of  the  court  to  say  to 
this  common  carrier,  'What  you  do  for  others  you  cannot  refuse  to  relator,' 
cannot,  we  think,  be  seriouslv  questioned."  Blanchard,  J.,  in  State  v.  Texas 
&  Pac.  R.  Co.,  .52  La.  Ann.  18.50.  28  South.  284  (1900).  Ace.  State  v.  Atl.  Coast 
Line,  51  Fla.  578,  40  South.  875  (1906). 

See.  also,  Nichols  v.  Oregon  Short  Line  R.  Co.,  24  Utah,  S3.  66  Pac-  768,  91 
Am.  St.  Rep.  778  (1901),  giving  preference  to  later  order  for  cars;  Cent.  Stock- 
yards Co.  V.  L.  &  N.  R.  Co.,  118  Fed.  113,  55  C.  C.  A.  63,  63  L.  R.  A.  213 
<1902),  delivering  all  cattle  at  yard  of  one  cattle  company ;  State  v.  C,  B.  & 
Q.  R.  Co..  72  Neb.  .542,  101  N.  W.  23  (1904).  apportionment  of  cars  among 
grain  elevators;  Little  Rock,  etc.,  Co.  v.  St.  Louis  Co.,  63  Fed.  775,  11  C.  C. 
A.  417,  26  L.  R.  A.  192  (1894),  waiving  prepayment  of  freight. 


Ch.  4)  EQUALITY  OP    SERVICE.  587 

TEXAS  &  p.  RY.  CO.  v.  INTERSTATE  COMMERCE  COM- 
MISSION. 

(Supreme  Court  of  the  United  States,  1896.    162  U.  S.  197,  16  Sup.  Ct.  666, 

40  L.   Ed.   940.) 

Shiras,  J.s  *  *  *  The  complaint  in  the  present  case  was  made 
by  certain  corporations  of  New  York,  Philadelpliia,  and  San  Fran- 
cisco, known  as  "boards  of  trade"  or  "chambers  of  commerce,"  which 
appear  to  be  composed  of  merchants  and  traders  in  those  cities  en- 
gaged in  the  business  of  reaching  and  supplying  the  consumers  of  the 
United  States  with  imported  luxuries,  necessities,  and  manufactured 
goods  generally,  and  as  active  competitors  with  the  merchants  at  Bos- 
ton, Montreal,  Philadelphia,  New  Orleans,  San  Francisco,  Chicago, 
and  merchants  in  foreign  countries  who  import  direct  on  through  bills 
of  lading  issued  abroad.     *     *     * 

After  an  investigation  made  by  the  Commission  on  a  complaint 
against  the  Texas  &  Pacific  Railway  Company  and  other  companies  by 
the  boards  of  trade  above  mentioned,  the  result  reached  was  the  order 
of  the  Commission  made  on  January  29,  1891,  a  disregard  of  which 
was  complained  of  by  the  Commission  in  its  bill  or  petition  filed  in  the 
Circuit  Court  of  the  United  States. 

The  Texas  &  Pacific  Railway  Company,  a  corporation  created  by 
laws  of  the  United  States,  and  also  possessed  of  certain  grants  from 
the  state  of  Texas,  owns  a  railroad  extending  from  the  city  of  New 
Orleans,  through  the  state  of  Texas,  to  El  Paso,  where  it  connects 
with  the  railroad  of  the  Southern  Pacific  Company,  the  two  roads  form- 
ing a  through  route  to  San  Francisco.  The  Texas  &  Pacific  Railway 
Company  has  likewise  connections  with  other  railroads  and  steamers 
forming  through  freight  lines  to  Memphis,  St.  Louis,  and  other  points 
•on  the  Alissouri  river,  and  elsewhere. 

The  defendant  company  admitted  that,  as  a  scheme  or  mode  of  ob- 
taining foreign  traffic,  it  had  agencies  by  which,  and  by  the  use  of 
through  bills  of  lading,  it  secured  shipments  of  merchandise  from 
Liverpool  and  London,  and  other  European  ports,  to  San  Francisco 
and  to  the  other  inland  points  named.  It  alleged  that  in  order  to  get 
this  traffic,  it  was  necessary  to  give  through  rates  from  the  places  of 
shipment  to  the  places  of  final  destination,  and  that  in  fixing  said 
rates  it  was  controlled  by  an  ocean  competition  by  sailing  and  steam 
vessels  by  way  of  the  Isthmus  and  around  the  Horn,  and  also,  to  some 
extent,  by  a  competition  through  the  Canada  route  to  the  Pacific  Coast. 
These  rates,  so  fixed  and  controlled,  left  to  the  defendant  company  and 
to  the  Southern  Pacific  Company,  as  their  share  of  the  charges  made 
and  collected,  less  than  the  local  charges  of  said  companies  in  trans- 

8  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


588  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

porting  similar  merchandise  from  New  Orleans  to  San  Francisco, 
and  so,  too,  as  to  foreign  merchandise  carried  to  other  inland  points. 
The  defendant  further  alleged  that  unless  it  used  said  means  to  get 
such  traffic  the  merchandise  to  the  Pacific  Coast  would  none  of  it 
reach  New  Orleans,  but  would  go  by  the  other  means  of  transporta- 
tion; that  neither  the  community  of  New  Orleans,  nor  any  merchant 
or  shipper  thereof,  was  injured  or  made  complaint;  that  the  traffic 
thus  secured  was  remunerative  to  the  railway  company,  and  was  ob- 
viously beneficial  to  the  consumers  at  the  places  of  destination,  who 
were  thus  enabled  to  get  their  goods  at  lower  rates  than  would  pre- 
vail if  this  custom  of  through  rates  was  destroyed. 

As  we  have  already  stated,  the  commission  did  not  charge  or  find 
that  the  local  rates  charged  by  the  defendant  company  were  unreason- 
able,^ nor  did  they  find  that  any  complaint  was  made  by  the  city  of 
New  Orleans,  or  by  any  person  or  organization  there  doing  business. 
Much  less  did  they  find  that  any  complaint  was  made  by  the  localities 
to  which  this  traffic  was  carried,  or  that  any  cause  for  such  complaint 
existed. 

The  Commission  justified  its  action  wholly  upon  the  construction 
put  by  it  on  the  act  to  regulate  commerce,^  as  forbidding  the  Commis- 
sion to  consider  the  "circumstances  and  conditions"  attendant  upon  the 
foreign  traffic  as  such  "circumstances  and  conditions"  as  they  are  di- 
rected in  the  act  to  consider.  The  Commission  thought  it  was  con- 
strained by  the  act  to  regard  foreign  and  domestic  traffic  as  like  kinds 
of  traffic  under  substantially  similar  circumstances  and  conditions,  and 
that  the  action  of  the  defendant  company  in  procuring  through  traf- 
fic that  would,  except  for  the  through  rates,  not  reach  the  port  of  New 
Orleans,  and  in  taking  its  pro  rata  share  of  such  rates,  was  an  act  of 
"unjust  discrimination,"  within  the  meaning  of  the  act. 

In  so  construing  the  act,  we  think  the  Commission  erred.  As  we 
have  already  said,  it  could  not  be  supposed  that  Congress,  in  regulat- 
ing commerce,  would  intend  to  forbid  or  destroy  an  existing  branch 
of  commerce,  of  value  to  the  common  carriers  and  to  the  consumers 
within  the  United  States.  Clearly,  express  language  must  be  used  in 
the  act,  to  justify  such  a  supposition. 

So  far  from  finding  such  language,  we  read  the  act  in  question  to 
direct  the  Commission,  when  asked  to  find  a  common  carrier  guilty  of 

7  Act  Feb.  4,  1887,  c.  104,  24  Stat.  .379  (U.  S.  Comp.  St.  1901.  p.  3154):  "Sec. 
2.  That  if  any  common  carrier  subject  to  the  provisions  of  this  act  shall, 
directly  or  indirectly,  by  any  special  rate,  rebate,  drawback,  or  other  device, 
charge,  demand,  collect,  or  receive  from  any  person  or  persons  a  greater  or 
less  compensation  for  any  service  rendered,  or  to  be  rendered,  in  the  trans- 
portation of  passengers  or  property,  subject  to  the  provisions  of  this  act,  than 
it  charges,  demands,  collects,  or  receives  from  any  other  person  or  persons 
for  doing  for  him  or  them  a  like  and  contemporaneous  service  in  the  trans- 
portation of  a  like  kind  of  traffic  under  substantially  similar  circumstances 
and  conditions,  such  common  carrier  shall  be  deemed  guilty  of  unjust  discrim- 
ination, which  is  hereby  prohibited  and  declared  to  be  unlawful." 


Ch.  4)  EQUALITY  OF    SERVICE.  589 

a  disregard  of  the  act,  to  take  into  consideration  all  the  facts  of  the 
given  case,  among  which  are  to  be  considered  the  welfare  and  advan- 
tage of  the  common  carrier,  and  of  the  great  body  of  the  citizens  of  the 
United  States  who  constitute  the  consumers  and  recipients  of  the  mer- 
chandise carried,  and  that  the  attention  of  the  Commission  is  not  to  be 
confined  to  the  advantage  of  shippers  and  merchants  who  deal  at  or 
near  the  ports  of  the  United  States,  in  articles  of  domestic  production. 
Undoubtedly  the  latter  are  likewise  entitled  to  be  considered ;  but  we 
cannot  concede  that  the  Commission  is  shut  up,  by  the  terms  of  this 
act,  to  solely  regard  the  complaints  of  one  class  of  the  community. 

We  think  that  Congress  has  here  pointed  out  that  in  considering 
questions  of  this  sort  the  Commission  is  not  only  to  consider  the  wishes 
and  interests  of  the  shippers  and  merchants  of  large  cities,  but  to  con- 
sider also  the  desire  and  advantage  of  the  carriers  in  securing  special 
forms  of  traffic,  and  the  interest  of  the  public  that  the  carriers  should 
secure  that  traffic,  rather  than  abandon  it  or  not  attempt  to  secure  it. 
It  is  self-evident  that  many  cases  may  and  do  arise  where,  although 
the  object  of  the  carriers  is  to  secure  the  traffic  for  their  own  purposes 
and  upon  their  own  lines,  yet  nevertheless  the  very  fact  that  they  seek, 
by  the  charges  they  make,  to  secure  it,  operates  in  the  interests  of  the 
public. 

]\Ioreover,  it  must  not  be  overlooked  that  this  legislation  is  experi- 
mental. Even  in  construing  the  terms  of  a  statute,  courts  must  take 
notice  of  the  history  of  legislation,  and,  out  of  different  possible  con- 
structions, select  and  apply  the  one  that  best  comports  with  the  genius 
of  our  institutions,  and  therefore  most  likely  to  have  been  the  construc- 
tion intended  by  the  lawmaking  power.  Commerce,  in  its  largest 
sense,  must  be  deemed  to  be  one  of  the  most  important  subjects  of 
legislation;  and  an  intention  to  promote  and  facilitate  it,  and  not  to 
hamper  or  destroy  it,  is  naturally  to  be  attributed  to  Congress.  The 
very  terms  of  the  statute,  that  charges  must  be  "reasonable,"  that  dis- 
crimination must  not  be  "unjust,"  and  that  preference  or  advantage 
to  any  particular  person,  firm,  corporation,  or  locality  must  not  be 
"undue"  or  "unreasonable,"  necessarily  imply  that  strict  uniformity 
is  not  to  be  enforced,  but  that  all  circumstances  and  conditions  which 
reasonable  men  would  regard  as  affecting  the  welfare  of  the  carrying 
companies,  and  of  the  producers,  shippers,  and  consumers,  should  be 
considered  by  a  tribunal  appointed  to  carry  into  effect  and  enforce 
the  provisions  of  the  act.     *     *     * 

The  mere  fact  that  the  disparity  between  the  through  and  the  local 
rates  was  considerable  did  not,  of  itself,  warrant  the  court  in  finding 
that  such  disparity  constituted  an  undue  discrimination.  Much  less 
did  it  justify  the  court  in  finding  that  the  entire  dift'erence  between  the 
two  rates  was  undue  or  unreasonable,  especially  as  there  was  no  per- 
son, firm,  or  corporation  complaining  that  he  or  they  had  been  ag- 
grieved by  such  disparity. 


590  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

The  decree  of  the  Circuit  Court  of  Appeals  is  reversed.  The  decree 
of  the  Circuit  Court  is  also  reversed,  and  the  cause  is  remanded  to  that 
court,  with  directions  to  dismiss  the  bill.^ 

Fuller^  C.  J.,  and  Harlan  and  Brown,  JJ.,  dissent. 


WIGHT  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1897.     167  U.  S.  512,  17  Sup.  Ct.  822, 

42  L.   Ed.   2.j8.) 

Indictment  for  violating  section  2  of  the  interstate  commerce  act 
(U.  S.  Comp.  St.  1901,  p.  3155).  Defendant  was  found  guilty.  Writ 
of  error. 

Brewer,  j.9  *  *  *  it  will  be  observed  that,  in  order  to  induce 
Mr.  Bruening  to  transfer  his  transportation  from  a  competing  road  to 
its  own  line,  the  Baltimore  &  Ohio  Railroad  Company,  through  the 
defendant,  in  the  first  place,  made  an  arrangement  by  which,  for  15 
cents  per  hundredweight,  it  would  bring  the  beer  from  Cincinnati,  and 
deliver  it  at  his  warehouse;  that  afterwards  this  arrangement  was 
changed,  and  it  dehvered  the  beer  to  INIr.  Bruening  at  its  depot,  and 
allowed  him  Sy^  cents  per  hundred  for  carting  it  to  his  warehouse. 
As  Mr.  Bruening  had  the  benefit  of  a  siding  connection  with  the  com- 
peting road,  and  could  get  the  beer  delivered  over  that  road  at  his  ware- 
house for  15  cents,  it  apparently  could  not  induce  him  to  transfer  his 
business  from  the  other  road  to  its  own  without  extending  to  him  this 
rebate.  During  all  this  time  it  was  carrying  beer  for  Mr.  Wolf  from 
the  same  place  of  shipment  (Cincinnati)  to  the  same  depot  in  Pittsburg, 
and  charging  him  15  cents  therefor.  Mr.  Wolf  had  no  siding  connec- 
tion with  the  rival  road,  and  therefore  had  to  pay  for  his  cartage,  by 
whichever  road  it  was  carried.  His  warehouse  was,  in  a  direct  line, 
140  yards  from  the  depot,  while  Mr.  Bruening's  was  172  yards,  though 
the  latter  generally  carted  the  beer  by  a  longer  route,  on  account  of 
the  steepness  of  the  ascent. 

Now,  it  is  contended  by  the  defendant  that  it  was  necessarv'  for  the 
Baltimore  &  Ohio  Company  to  offer  this  inducement  to  Mr.  Bruening 
in  order  to  get  his  business,  and  not  necessary  to  make  the  like  offer 
to  Mr.  Wolf,  because  he  would  have  to  go  to  the  expense  of  carting, 

8  In  Interstate  Commerce  Commission  v.  Louisville  &  N.  R.  Co.  (C.  C.)  US 
Fed.  613  (1902),  a  railroad  running  from  Pensacola  to  a  junction  with  a  rail- 
road to  Savannah  established  rates  from  points  on  its  line  to  Savannah  dis- 
proportionately high  as  compared  with  the  rates  to  Pensacola.  In  conse- 
quence goods  were  sent  to  Pensacola  to  market,  to  the  prejudice  of  Savannah 
merchants,  but  to  the  advantage  of  Pensacola  and  of  the  railroad,  which 
thereby  received  the  entire  freight  and  increased  the  volume  of  business  at 
its  terminal  port.  The  maintenance  of  the  higlier  Savannah  rates  was  en- 
joined. 

9  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion  are 
omitted. 


Ch.  4)  EQUALITY   OF    SERVICE.  591 

by  whichever  road  he  transported;  that  therefore  the  traffic  was  not 
"under  substantially  similar  circumstances  and  conditions,"  within  the 
terms  of  section  2.  We  are  unable  to  concur  in  this  view.  *  *  * 
Counsel  *  *  *  say  that  the  section  contains  no  prohibition  of  extra 
service  or  extra  privileges  to  one  shipper  over  that  rendered  to  an- 
other. They  ask  whether,  if  one  shipper  has  a  siding  connection  with 
the  road  of  a  carrier,  it  cannot  run  the  cars  containing  such  shipper's 
freight  onto  that  siding,  and  thus  to  his  warehouse,  at  the  same  rate 
that  it  runs  cars  to  its  own  depot,  and  there  delivers  goods  to  other 
shippers  who  are  not  so  fortunate  in  the  matter  of  sidings.  But  the 
service  performed  in  transporting  from  Cincinnati  to  the  depot  at 
Pittsburg  was  precisely  alike  for  each.  The  one  shipper  paid  15  cents 
a  hundred;  the  other,  in  fact,  but  III/2  cents.  It  is  true,  he  formally 
paid  15  cents,  but  he  received  a  rebate  of  3i  2  cents ;  and  regard  must 
always  be  had  to  the  substance,  and  not  to  the  form.  Indeed,  the  sec- 
tion itself  forbids  the  carrier,  "directly  or  indirectly  by  any  special 
rate,  rebate,  drawback  or  other  device,"  to  charge,  demand,  collect,  or 
receive  from  any  person  or  persons  a  greater  or  less  compensation, 
etc.     *     *     * 

It  may  be  that  the  phrase,  "under  substantially  similar  circumstances 
and  conditions,"  found  in  section  4  of  the  act,  and  where  the  matter 
of  the  long  and  short  haul  is  considered,  may  have  a  broader  meaning 
or  a  wider  reach  than  the  same  phrase  found  in  section  2.  It  will  be 
time  enough  to  determine  that  question  when  it  is  presented.  For  this 
case  it  is  enough  to  hold  that  that  phrase,  as  found  in  section  2,  re- 
fers to  the  matter  of  carriage,  and  does  not  include  competition. 

We  see  no  error  in  the  record,  and  the  judgment  of  the  District 
Court  is  affirmed.^*^ 


INTERSTATE  COM^IERCE   CO^IMISSION   v.   LOUISVILLE 

&  N.  R.  CO. 

(Supreme  Court  of  the  United  States,  1903.     190  U.  S.  273,  23  Sup.  Ct.  687, 

47   L.   Ed.   1047.) 

This  was  a  proceeding  in  equity  instituted  by  the  Interstate  Com- 
merce Commission  to  enforce  their  order  sustaining  a  complaint  by  a 
merchant  of  La  Grange,  a  city  between  New  Orleans  and  Atlanta, 

10  A  railroad  company,  which  buys  coal,  and  carries  and  sells  it  at  an  ad- 
vance above  the  purchase  price  less  than  its  usual  charge  for  carriage,  is 
guilty  of  imjust  discrimination  against  competing  shippers  within  the  iutei-- 
state"  commerce  act.  New  York,  N.  H.  &  H.  R.  R.  v.  Int.  Com.  Com.,  200 
U.  S.  361.  26  Sup.  Ct.  272,  50  L.  Ed.  515  (1906). 

The  interstate  commerce  act,  as  amended  June  29,  1906  (34  Stat.  584  [U. 
S.  Comp.  St.  Supp.  1909,  p.  1149]),  prohibits  the  interstate  carriage  of  com- 
modities owned  by  the  carrying  railroad  other  than  timber,  timber  products, 
and  articles  for  its  own  use.  as  a  carrier.  For  the  interpretation  and  effect 
of  this  provision,  see  U.  S.  v.  Del.  &  H.  Co.,  213  U.  S.  360,  29  Sup.  Ct.  527,  53 
L.  Ed.  836  (1909). 


592  THE   COMMON    CARRIER'S    DUTY    TO   SERVE.  (Part  5 

which  charged  that  the  rates  estabhshed  by  defendant  railroad  com- 
panies from  New  Orleans  to  La  Grange,  as  compared  with  their  lower 
rates  from  New  Orleans  to  cities  beyond  La  Grange,  unjustly  dis- 
criminated against  La  Grange  and  its  merchants,  gave  undue  and 
unreasonable  preference  and  advantage  to  merchants  in  such  other 
cities,  yielded  greater  compensation  for  transportation  for  a  shorter 
than  for  a  longer  distance  over  the  same  line,  and  were  in  violation 
of  section  4  and  other  sections  of  the  act  to  regulate  commerce.^ ^ 

The  Circuit  Court  sustained  the  order  of  the  Commission.  The 
Circuit  Court  of  Appeals  reversed  the  decree. 

White,  J.^^  *  *  *  f\-^Q  record  convinces  us  that  the  appellate 
court  correctly  decided  that  there  was  no  legal  foundation  for  the  con- 
tention that  the  third  and  fourth  sections  of  the  act  to  regulate  com- 
merce had  been  violated.  It  was  and  is  conceded  that  the  rates  on 
through  freight  from  New  Orleans  to  Atlanta  were  the  result  of  com- 
petition at  Atlanta,  and  that  there  was,  hence,  such  a  dissimilarity  of 
circumstances  and  conditions  as  justified  the  lesser  charge  for  the  car- 
riage of  freight  from  New  Orleans  to  Atlanta,  the  longer  distance 
point,  than  was  exacted  for  the  haul  from  New  Orleans  to  La  Grange, 
the  shorter  distance  point. 

The  sum  of  the  rate  to  La  Grange  was  arrived  at  by  charging  the 
low  rate  produced  by  competition  at  Atlanta,  and  adding  thereto  the 
sum  of  the  local  rate  back  from  Atlanta  to  La  Grange.  The  same  rule 
was  applied  to  the  stations  between  La  Grange  and  Atlanta,  each  of 
those  stations  receiving,  therefore,  a  somewhat  lower  rate  than  La 
Grange,  although  they  were  located  a  greater  distance  from  New  Or- 
leans and  nearer  Atlanta.     *     *     '■' 

When  the  situation  just  stated  is  comprehended,  it  results  that  the 
complaint  in  effect  was  that  a  method  of  rate  making  had  been  resorted 
to  which  gave  to  the  places  referred  to  a  lower  rate  than  they  otherwise 
would  have  enjoyed.  In  this  situation  of  affairs,  we  fail  to  see  how 
there  was  any  just  cause  of  complaint.  Clearly,  if,  disregarding  the 
competition  at  Atlanta,  the  higher  rate  had  been  established  from  New 

11  Sec.  4.  That  it  shall  be  nnlawful  for  any  common  carrier  subject  to  the 
provisions  of  this  act  to  charge  oi-  receive  any  greater  compensation  in  the 
aggregate  for  the  transportation  of  passengers  or  of  like  kind  of  property, 
under  substantially  similar  circumstances  and  conditions,  for  a  shorter  than 
for  a  longer  distance  over  the  same  line,  in  the  same  direction,  the  shorter 
being  included  within  the  longer  distance:  but  this  shall  not  be  construed  as 
authorizing  any  common  carrier  vpithin  the  terms  of  this  act  to  charge  and 
receive  as  gi'eat  compensation  for  a  shorter  as  for  a  longer  distance:  Pro- 
vided, however,  that  upon  application  to  the  Commission  appointed  under 
the  provisions  of  this  act,  such  common  carrier  may,  in  special  cases,  after 
investigation  by  the  Commission,  be  authorized  to  charge  less  for  longer  than 
for  shorter  distances  for  the  transportation  of  passengers  or  property ;  and 
the  Commission  may  from  time  to  time  prescribe  the  extent  to  which  such  des- 
ignated common  carrier  mav  be  relieved  from  the  operation  of  this  section 
of  this  act.     U.  S.  Comp.  St.'  1901,  p.  3155. 

12  The  statement  of  facts  has  been  rewritten,  and  parts  of  the  opinion  are 
omitted. 


Ch.  4)  EQUALITY  OF    SERVICE.  593 

Orleans  to  the  noncompetitive  points  within  the  designated  radius 
from  Atlanta,  the  inevitable  result  would  have  been  to  cause  the  traffic 
to  move  from  New  Orleans  to  the  competitive  point  (Atlanta),  and 
thence  to  the  places  in  question,  thus  bringing  about  the  same  rates 
now  complained  of.  It  having  been  established  that  competition  affect- 
ing rates  existing  at  a  particular  point  (Atlanta)  produced  the  dis- 
similarity of  circumstances  and  conditions  contemplated  by  the  fourth 
section  of  the  act,  we  think  it  inevitably  followed  that  the  railway  com- 
panies had  a  right  to  take  the  lower  rate  prevailing  at  Atlanta  as  a 
basis  for  the  charge  made  to  places  in  territory  contiguous  to  Atlanta, 
and  to  ask,  in  addition  to  the  low  competitive  rate,  the  local  rate  from 
Atlanta  to  such  places,  provided  thereby  no  increased  charges  resulted 
over  those  which  would  have  been  occasioned  if  the  low  rate  to  At- 
lanta had  been  left  out  of  view.  That  is  to  say,  it  seems  incontrovert- 
ible that  in  making  the  rate,  as  the  railroads  had  a  right  to  meet  the 
competition,  they  were  authorized  to  give  the  shippers  the  benefit  of  it 
by  according  to  them  a  lower  rate  than  would  otherwise  have  been 
afforded.  True  it  is,  that  by  this  method  a  lower  rate  from  New  Or- 
leans than  was  exacted  at  La  Grange  obtained  at  the  longer  distance 
places  lying  between  La  Grange  and  Atlanta,  but  this  was  only  the 
result  of  their  proximity  to  the  competitive  point,  and  they  hence  ob- 
tained only  the  advantage  resulting  from  their  situation,  *  *  * 
Affirmed." 

13  The  Act  of  Congress,  approved  June  18,  1910.  beside  making  unimportant 
changes  in  the  phrasing  of  section  4  of  the  interstate  commerce  act,  amended 
the  section  by  striking  out  the  words  "under  substantially  similar  circum- 
stances and  conditions,"  and  by  adding  the  following:  "Provided  further,  that 
no  rates  or  charges  lawfully  existing  at  the  time  of  the  passage  of  this  amend- 
atory act  shall  be  required  to  be  changed  by  reason  of  the  provisions  of  this 
section  prior  to  the  expiration  of  six  months  after  the  passage  of  this  act,  nor 
in  any  case  where  application  shall  have  been  filed  before  the  commission,  in 
accordance  with  the  provisions  of  this  section,  until  a  determination  of  such 
application  by  the  commission.  Whenever  a  carrier  by  railroad  shall  in  com- 
petition with  a  water  route  or  routes  reduce  the  rates  on  the  carriage  of  any 
species  of  freight  to  or  from  competitive  points.  It  shall  not  be  permitted  to 
increase  such  rates  unless  after  hearing  by  the  Interstate  Commerce  Commis- 
sion it  shall  be  found  that  such  proposed  increase  rests  upon  changed  condi- 
tions other  than  the  elimination  of  water  competition." 

In.  Int.  Com.  Com.  v.  Chicago  Gt.  Western  Ry..  209  U.  S.  108,  28  Sup. 
Ct.  493.  52  L.  Ed.  705  (1908),  it  appeared  that,  as  a  result  of  competition  to 
secure  the  carriage  to  Chicago  of  dressed  beef  from  packing  houses  in  Kansas 
City  and  St.  Paul,  the  rate  on  dressed  meat  had  been  reduced  below  the  rate 
for  live  stock.  Shippers  of  live  stock  and  Chicago  packers  complained  of  the 
higher  rate  on  live  stock  as  unjustly  discriminating  against  them.  It  w^as 
found  that  the  rate  on  live  stock  was  not  of  itself  unreasonably  high,  and 
that  the  lower  rate  on  dressed  meat  had  not  caused  a  diminution  in  shipments 
of  live  stock.  Brewer,  J.,  said:  "It  must  be  remembered  that  railroads  are 
the  private  property  of  their  owners;  that  while,  from  the  public  character 
of  the  work  in  which  they  are  engaged,  the  public  has  the  power  to  pre- 
scribe rules  for  securing  faithful  and  efficient  service  and  equality  between 
shippers  and  communities,  yet  in  no  proper  sense  is  the  public  a  general  man- 
ager. As  said  in  Int.  Com.  Com.  v.  Ala.  Mid.  R.  R.  Co.,  168  U.  S.  144.  172,. 
18  Sup.  Ct.  45,  42  L.  Ed.  414,  quoting  from  the  opinion  of  Circuit  Judge  Jack- 

Gbeen  Carb. — 38 


594  THE  COMMON    CARRIER'S   DUTY   TO   SERVE.  (Part  5 

son.  afterwards  Mr.  Justice  Jackson  of  this  court,  in  Int.  Com.  Com.  v.  B.  & 
O.  R.  R.  Co.,  43  Fed.  37.  50:  'Subject  to  the  two  leading  prohibitions  that 
their  charges  shall  not  be  unjust  or  unreasonable,  and  that  they  shall  not  un- 
justly discriminate  so  as  to  give  undue  preference  or  disadvantage  to  per- 
sons or  tratfic  similarly  circumstanced,  the  act  to  regulate  commerce  leaves 
common  carriers,  as  they  were  at  tlie  common  law.  free  to  make  special  rates 
looking  to  the  increase  of  their  business,  to  classify  their  traffic,  to  adjust 
and  apportion  their  rates  so  as  to  meet  the  necessities  of  commerce  and 
of  their  own  situation  and  relation  to  it,  and  generally  to  manage  their  im- 
portant interests  upon  the  same  principles  which  are  regarded  as  sound  and 
adopteti  in  other  trades  and  pursuits.'  *  *  *  It  is  insisted  that  'the  making 
of  the  live  stock  rate  higher  than  the  product  rate  is  violative  of  the  almost 
universal  rule  that  the  rates  on  raw  material  shall  not  be  higher  than  on  the 
manufactured  product.'  This  may  be  conceded,  but  that  the  rule  is  not  uni- 
versal the  proposition  itself  recognizes,  and  the  findings  of  the  court  give  sat- 
isfactory reasons  for  the  excei»tion  here  shown.  The  cost  of  carriage,  the 
risk  of  injury,  the  larger  amount  which  the  companies  are  called  upon  to  pay 
out  in  damages,  make  sufficient  explanation.  They  do  away  with  the  idea 
that  in  the  relation  established  between  the  two  kinds  of  charges  any  undue 
or  unreasonable  preference  was  intended  or  secured.  *  *  *  An  honest  and 
fair  motive  was  the  cause  of  the  change  in  rates ;  honest  and  fair  on  the 
part  of  the  Great  Western  in  its  effort  to  secure  more  business,  and  equally 
honest  and  fair  on  the  part  of  the  other  railway  companies  in  the  effort  to 
retain  as  much  of  the  business  as  was  possible.  In  other  words,  this  competi- 
tion eliminates  from  the  case  an  intent  to  do  an  unlawful  act,  and  leaves  for 
consideration  only  the  question  whether  the  rates  as  established  do  work  an 
undue  preference  or  discrimination;  and  as  the  findings  of  the  court  show 
that  the  result  of  the  new  rates  has  not  been  to  change  the  volume  of  ti-affic 
going  to  Chicago,  or  materially  to  affect  the  business  of  the  original  complain- 
ant, it  would  seem  necessarily  to  result  that  the  charge  of  an  unlawful  dis- 
crimination is  not  proved." 

Compare  Cm.,  etc.,  Ry.  v.  Int.  Com.  Com.,  206  U.  S.  142,  27  Sup.  Ct.  648,  51 
L.  Ed.  995  (1907). 


APPENDIX 


IN  THE  MATTER  OF  BILLS  OF  LADING 

(Before  the  Interstate  Commerce  Commission,  June  27,  1908.     No.  787. 
14  I.  C.  C.  Rep.  346.) 

Knapp^  Chairman.  This  is  a  proceeding  of  investigation  and  inqui- 
ry instituted  by  the  Commission  on  November  21,  1904:.  Shortly  be- 
fore that  date  numerous  petitions  were  received  from  the  Illinois  jMan- 
ufacturers'  Association  and  other  commercial  organizations  in  Official 
Classification  territory,  complaining  of  the  proposed  adoption,  by  rail- 
road companies  operating  in  that  territory,  of  certain  changes  in  the 
so-called  uniform  bill  of  lading  then  generally  used  in  the  transporta- 
tion of  freight  over  their  respective  lines. 

To  inform  itself  concerning  the  controversy  brought  to  its  atten- 
tion by  these  petitions  the  Commission  ordered  an  investigation,  and 
the  first  hearing  was  had  on  the  5th  and  6th  days  of  December,  190-1. 
It  appeared  at  that  time  that  the  matters  in  question  were  the  proper 
subject  for  negotiation  and  settlement  between  the  various  conflicting 
interests,  and  upon  the  suggestion  of  the  Commission  a  joint  commit- 
tee of  shippers  and  carriers  was  appointed  to  formulate  a  suitable  bill 
of  lading  and  report  the  same  to  the  Commission.  During  the  year 
1906  and  the  first  months  of  1907  this  committee  held  numerous  con- 
ferences and  gave  to  the  subject  most  careful  attention.  On  June  14, 
1907,  they  made  a  report  to  the  Commission,  and  submitted  a  bill  of 
lading  which  appears  to  have  been  agreed  upon  and  consented  to  by 
the  original  petitioners  and  by  substantially  all  carriers  in  Official 
Classification  territory.  The  Commission  was  thereupon  asked  to  ap- 
prove this  bill  and  direct  its  adoption. 

In  order  that  the  matter  might  be  more  fully  considered  and  other 
shippers  and  carriers  have  opportunity  to  be  heard  before  taking  ac- 
tion, the  Commission  on  July  8,  1907,  made  a  supplemental  order,  re- 
citing the  proceedings  up  to  that  time,  providing  for  a  further  hearing 
on  the  15th  of  October  following,  and  requiring  carriers  to  whom  it 
was  sent  to  show  cause  on  that  day  why  the  proposed  bill  of  lading 
should  not  be  approved  and  prescribed  by  the  Commission  to  be  used  on 
and  after  January  1,  1908.  A  copy  of  the  order,  with  copies  of  the 
proposed  bill  of  lading  and  of  the  petition  of  the  Illinois  Manufac- 
turers' Association  (the  other  petitions  being  similar  thereto),  was 
thereupon  mailed  to  all  railroad  companies  subject  to  the  act  to  regu- 
late commerce,  so  far  as  they  were  known,  and  they  were  directed,  if 
they  desired  to  object  to  the  adoption  of  this  bill  of  lading,  to  file  their 
Gbeen  Carb.  (595) 


596  APPENDIX. 

objections  in  writing  with  the  Commission  on  or  before  the  16th  day 
of  September,  1907.    *    *    * 

The  Commission  has  been  measurably  reUeved  from  a  task  of  great 
difficulty,  because  the  bill  as  now  submitted  represents  in  most,  if  not 
in  all,  of  its  principal  features  a  virtual  agreement  between  shippers 
and  carriers. 

In  its  general  scope  as  well  as  its  detailed  provisions  this  bill  does 
not  differ  materially  from  the  one  assented  to  and  proposed  to  the 
Commission  in  June,  1907,  as  above  stated.  Such  changes  as  have 
been  made,  and  they  are  quite  numerous,  have  all  been  in  the  direc- 
tion of  greater  simplicity  and  are  all  beHeved  to  be  in  the  interest  of 
the  shipping  public.  Aside  from  these  modifications  of  the  bill  as 
submitted  a  year  ago,  another  change  has  been  made  which  is  regarded 
of  great  practical  value.  This  change  consists  in  the  provision  of 
two  forms  or  kinds  of  bills  of  lading  in  place  of  the  single  form  now 
and  heretofore  in  use;  one  to  be  used  for  "order  consignments"  and 
the  other  for  "straight  consignments,"  as  those  terms  are  understood 
in  commercial  dealings.  These  two  forms  will  be  distinguished  by 
different  colors  and  each  will  contain  provisions  suited  to  its  separate 
purpose.  They  will  differ  only  on  the  face  side,  the  conditions  printed 
on  the  back  being  the  same  in  both  cases.  These  differences  will  ap- 
pear upon  inspection  and  need  not  here  be  enumerated.  The  main 
point  in  this  connection  is  that  the  "order"  bill  will  possess  a  certain 
degree  of  negotiability,  while  the  "straight"  bill  will  be  nonnegotiable 
and  is  to  be  so  stamped  upon  its  face.  Moreover,  and  this  is  a  matter 
of  consequence,  the  order  bill  of  lading  will  be  required  to  be  surren- 
dered upon  or  before  the  delivery  of  the  property  to  the  consignee. 
It  is  believed  that  this  plan  will  in  large  part  meet  the  requirements 
of  the  banking  concerns  of  the  country  which  advance  vast  sums  of 
money  upon  bills  of  lading  and  are  entitled  to  a  reasonable  measure 
of  protection. 

This  proposed  bill  of  lading — for  the  two  forms  may  be  considered 
as  one  in  what  we  have  further  to  say — is  submitted  for  adoption  by 
the  carriers  and  use  by  the  shipping  public  with  considerable  confi- 
dence. It  is  not  claimed  to  be  perfect,  and  experience  may  develop 
the  need  of  further  modifications,  but  it  represents  the  most  intelli- 
gent and  exhaustive  efforts  of  those  who  undertook  its  preparation  to 
agree  upon  a  bill  of  lading  which  should  be  reasonably  satisfactory 
to  the  railroads  and  the  pubhc.  It  is,  of  course,  more  or  less  a  com- 
promise between  opposing  interests,  because  on  the  one  hand  it  im- 
poses obligations  of  an  important  character  which  carriers  have  not 
heretofore  assumed,  and  on  the  other  retains  exemptions  to  which 
some  shippers  may  object,  and  perhaps  not  without  substantial  reason. 
As  we  are  advised,  it  is  in  some  respects  less  favorable  to  the  shipper 
than  the  local  laws  or  regulations  of  one  or  more  states,  but  is  more 
favorable  to  the  shipper  than  the  local  laws  or  regulations  of  most 


IN   THE   MATTER   OF   BILLS   OF   LADING.  597 

of  the  states.  On  the  whole,  it  is  believed  to  be  the  best  adjustment 
which  is  now  practicable  of  a  controversy  of  long  standing  which  af- 
fects the  business  interests  of  the  entire  country.     *     *     * 

As  above  suggested,  this  bill  of  lading  is  designed  for  use  in  con- 
nection with  the  movement  of  miscellaneous  freight  and  general  mer- 
chandise and  as  a  substitute  for  the  bills  now  in  use  in  the  carriage  of 
this  description  of  property.  It  is  not  intended  to  take  the  place  of 
special  bills  of  lading  which  are  issued  on  particular  commodities  of 
such  a  nature  or  so  handled  as  to  require  exceptional  provisions,  such 
as  live  stock,  for  example,  and  perhaps  perishable  property.  In  short, 
this  bill  is  proposed  as  a  uniform  or  standard  bill,  so  to  speak,  to  be 
.used  in  connection  with  freight  articles  generally,  except  such  as  now 
are  or  ought  to  be  carried  under  special  conditions.  We  are  unable 
from  want  of  knowledge  to  indicate  just  what  commodities  fall  within 
this  exception,  much  less  to  determine  the  special  provisions  suited  to 
any  excepted  commodity,  and  therefore  do  not  attempt  to  go  further 
at  this  time  than  to  approve  of  what  may  be  called  a  standard  bill  of 
lading. 

Nor  do  we  undertake  to  prescribe  this  bill  of  lading  and  order  its 
adoption,  because  we  are  convinced  that  such  an  order  would  exceed 
our  authority.  Moreover,  the  situation  makes  no  demand  for  a  posi- 
tive direction.  The  circumstances  under  which  the  work  of  the  joint 
committee  has  been  conducted  and  the  substantial  agreement  on  most 
points  by  the  different  interests  concerned,  to  say  nothing  of  direct 
assurances  from  representatives  of  the  carriers,  warrant  us  in  ex- 
pecting that  the  assenting  roads  will  adopt  the  bill  upon  our  recom- 
mendation. We  therefore  assume  that  the  railroads  in  Official  Classi- 
fication territory,  whose  proposed  action  was  the  subject  of  the  origi- 
nal investigation,  will  adopt  and  use  this  bill,  to  the  extent  above  indi- 
cated, from  and  after  the  date  named  for  that  purpose. 

We  shall  also  expect  that  railroad  carriers  subject  to  the  act  outside 
of  Official  Classification  territory  will  adopt  and  use  this  bill  of  lading 
to  the  same  extent  and  from  and  after  the  same  date.  There  may  be 
peculiar  conditions  in  Western  and  Southern  territory  which  require 
some  modifications  of  or  additions  to  this  standard  bill,  but  the  desira- 
bility of  uniform  usage  is  so  great  and  the  reasons  for  it  so  obvious  as 
to  justify  the  expectation  that  carriers  in  Western  and  Southern  ter- 
ritory will  adopt  the  bill  in  question  to  the  fullest  extent  practicable 
without  abridging  any  just  privileges  which  their  shippers  now  enjoy. 

Accordingly  the  Commission  hereby  gives  approval  to  the  bill  of 
lading  annexed  to  this  report  and  made  a  part  thereof,  the  "order"  bill 
and  "straight"  bill  differing  only  on  the  front  page,  the  conditions 
printed  on  the  back  being  the  same  in  both  cases,  and  recommends  its 
adoption  and  use,  to  the  extent  above  named,  by  all  carriers  subject  to 
the  act  to  regulate  commerce  from  and  after  the  1st  .day  of  September, 
1908.     *     *     * 


598 


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INDEX' 


[the  figures  refer  to  pages] 


ABANDONMENT, 

of  carrier's   undertaking,  wlien  justified,   113-118,   127. 
of  goods  by  consignee,  143,  144,  109. 

ACCEPTANCE, 

of  goods  by  carrier,  what  constitutes,  88.  92.  95,  112,  192,  385,  482-489,  491. 
of  passenger,  what  constitutes,   81,   89,  90,   100,   108,   111,   112,   489-496. 

ACT  OF  GOD, 

defined,  IT,  18,  318,  321,  347,  348. 

cases  classed  as,  345,  340.  352. 

cases  not   classed  as,  0,  317,  318,  346,  352,  427. 

liability  for  loss  by, 

in  case   of  deviation,   60. 

in  case  of  delay,  64-OS,  353-356. 

in  other  cases  where  loss  might  have  been  avoided,  350,  427. 
burden  of  proof  as  to  carrier's  fault,  443. 

ACT  OF   SHIPPER.  360,  301,   367-375,  387. 

ACTION, 

against  carrier,  form  of,  contract  or  tort,   178. 

and  see  Common  Carriers,  of  goods,  liability  for  loss. 
by  indorsee  of  bill  of  lading,  182,  1.S3. 
who  are  proper  parties  to,  see  Parties. 

APvTICLES    NOT    IN   CARRIER'S    CUSTODY,    385-394. 

ATTACHMENT, 

see  Seizure  under  Legal  Process. 

BAGGAGE  AND  PASSENGERS'  EFFECTS. 

what  properly  carried  as,  92,  93,  95,  97-106. 
common  carrier's  liability  for, 

if  in  carrier's  custody,   100,  385,  38!?,  .392-394,   395. 

if  not  in  carrier's  custody,  100,  388,  389-392. 

if  carried  free,   14,  383. 

what  constitutes  carrier's  custody,  385,  388-394. 

when  liability  terminates,  510. 

transportation   over  connecting  lines,   what  carrier  liable.   242,   244, 
2.55. 
carrier's    liability    for   articles   not   proper   baggage,    92,   94,   9.5,    97-106. 

effect  of  carrier's  knowledge  of  coutent.s,  101.  10-5.  106. 
liability  for  baggage  unaccompanied  by  passenger,   112. 
obligation  as  to  delivery  of  baggage,  510. 
lien  on  for  fare,  287. 

BAILEE. 

liability  of  for  loss  without  fault.  2,  3,   4,  0,  7,   8,   59,   312,  317. 

burden   of   proof   as   to   fault,   4,   440. 
liability  for  loss  in  course  of  unauthorized  dealing  with  goods,   .59,  62. 
what  constitutes  undertaking  to  redeliver  sound,  2,  3,  4,  5,  7,  8,  435,  436. 

BAILMENTS. 

classes  of  defined,  9,   10,  12. 

Gkeen  Carr.  (603) 


604  INDEX. 

[The  figures  refer  to  pages.] 

BILL  OF  LADING, 

in   general,   u6,   428. 
standard  forms  of,  595-602, 

acceptance  of  as  evidence  of  assent  to  terms  of  carriage,  173,  411,  414, 
418,   424,  425. 
\Yheu  not  evidence,  421,  422,  425. 
how  far  conclusive  as  to  terms  of  carriage, 

between  carrier  and  shipper,    42(J,    42'J-431. 
between  carrier  and  indorsee,   52,  431. 
authority  of  agent  to  accept,  423. 
recitals  of, 

as  between  carrier  and  shipper,  effect  of,  as  evidence,  191,  200,  201, 
428-429. 
whether  conclusive,   191,   198,  201,  428-429. 
as   between   carrier   and   indorsee,    201. 
and   see   rights   of   hoftler. 
form   and   transfer    of,    as   evidence   of   right    to    goods,    152,    154,   157, 

159,    160,   183,   189,   193. 
indorsement   of,   as   direction   of   delivery,   158. 
rights  of  holder  of, 

issued  in  excess  of  goods  received,  192-198,  200,  201. 
issued  in  duplicate  or  left  outstanding,  160,  183,   188,  190. 
compared  with  negotiable  instrument,   157,   162,   182,   183,   185,   187, 
194,   195,   197. 
how  construed,  in  general,  see  Common  Carriers,  limitation  of  liability 
by  consent,  construction  of. 
"perils  of  the  sea,"  347,  436. 
"liberty  to  call,"'  52,  54. 
"weight  subject  to  correction,"  199. 
"contents    and   weight   unknown,"    198,   199. 
"master  to  sign  bill  of  lading  as  customary,"  430. 

BURDEN   OF   PROOF, 

as   to  negligence  of  ordinary  bailee,  4,   440. 

of  common  carrier  of  passengers,  343. 

of  carrier  who  pleads  inherent  vice,  362. 

of  carrier  who  pleads  act  of  God,  443. 

of  carrier  who  pleads  bill  of  lading  exception,  439-444,  600. 

of  carrier  who  delays,  65. 
distinguished  from  duty  to  rebut  prima  facie  case,  440-441. 

CARE  OF  GOODS, 

duty  to  protect  and  preserve,   in  general,   73-77,  116,  362,  387,  543. 
by  sale,  77,   129,   295. 
by  transhipment,    128,    309. 
by  general    average   sacrifice,   132. 
when  taken  under  legal  process,   125,   126. 
after  arrival  at  destination,  141,  309,  501,  506, 
when  duty  to  protect  justifies  delay,  45. 
duty  not  to  injure  by  negligence, 

when  carrier  under  no  duty  to  take  care.  92,  95,  97,  90,  102. 
measure  of  duty  in  such  case,  90,  92,  99.  111. 

and    see    Baggage,    carrier's    liability    for    articles    not    proper 
baggage. 
,  reimbursement   for  expenses  of  care,   see  Compensation   for   Extraordi- 
nary Services. 

CARE  OF  PASSENGERS, 

duty,  as  to  protection  from  insult  or  violence,  73,  77-84,  331,  522-523. 
as  to  heating    car,    87. 
as  to  furnishing  seat,  8.5-87. 

as  to  opportunity   to   leave  train   where  no  seats  available,   86,   87. 
persons  carrier  is  not  bound  to  protect,  see  Acceptance,  of  passenger ; 
Liability  for  Loss,  Damage,  or  Injury. 


INDEX.  605 

[The  figures  refer  to  pages.] 

CARRIERS, 

defiued,  20,  23. 

who  are  or  are  not, 

bridge  and  caual  company,  32, 
drover,   24. 

express  company,  19,  253. 
ferryman,  386,  387. 
forwarder,  21. 
hackmau,  32. 
liveryman,   32. 
log  driver,  23. 
master  of  vessel,  32,  314. 
messenger  company,  32. 
passenger  elevator,  29,  30. 
railroad  carrying  mail,  32. 
hauling  circus,  27,  28. 
switching   cars,   29. 
taking  cars  of  other  road,   29. 
receiver  and  trustees  operating  railroad,  32,  251,  487. 
sleeping  car  company,  33,  391. 
stagecoachman,  385. 
telegraph  company,  33. 
terminal  company  hauling  cars,   29. 
truckman.  6,  31.  32,  38. 
tugboat,  25,  26,  27,  34. 
whether  an  agent  to  carry,  179. 
authority  of,  as  agent  to  forward,  291. 

see,  also,  Care  of  Goods;    Care  of  Passengers;    Common  Carriers; 
Contract  of  Carriage;    Liability  for  Loss,  Damage,  or  Injury. 

CHARGES  AND  ADVANCES,   271,  311. 
lien  for,  284,  29.3,  294,  311,  601. 

see,  also,  Compensation  for  Extraordinary  Services;    Freight. 

CHARTER  PARTIES,  230-232,  249,  430,  431. 

cesser  clause,  299. 

C.  O.  D.  DELIVERY  OF  GOODS,  144. 

COMMON  CARRIERS, 

defined,  17,  19,  25,  34,  35,  30,  37,  323,  380,  385. 

who  are  or  are  not,  in  general,  17,   34,  35,  39,  410,  44G. 

express  company,  19. 

ferrvman,  386,  387. 

hackman,  32-37. 

lighterman,  36. 

liveryman,  32. 

passenger  elevator,  29,  30. 

railroad  carrying  mail,  32. 
hauling  circus,  27,  28,  41. 
taking  dog  iu  baggage  car,  40. 

receivers  and  trustees  operating  railroad,  32,  251,  487. 

stagecoachman,  34,  385. 

truckman,   6,  31,   32,  37,   38. 

tugboat,  25,  26,  27,  34. 

bringing  back  proceeds  of  goods  sold,  39. 

carrying  as  a  business,  38. 

carrying  as  special  accommodation,  446. 
of  goods,  liability  for  loss,   in  general,  18,  20,   253,  312,  313,  315,  317, 
318,  348,  357,  359,  369,  436,  446,  501. 

In  contract,  323,  324. 

in  tort,  313,  319,  321,  324,  325,  385. 

at  foreign  law,  316. 


606  INDEX. 

[The  figures  refer  to  pages.] 
COMMON  CARRIERS— Continued. 

in   carriage   of  live  stock,   237,   23S,   359. 
of  slaves,  359. 

of  articles  not  usually  carried,  34,  40,  44G. 
for   carriage  beyond  usual   terminus,   32. 

and  see  Connecting  Carriers;    Liability  for  Loss,  Damage,  or  In- 
jury, 
exceptions  to  liability,  see  Act  of  God;    Public  Enemy;    Quality  of 
Thing    Carried;     Act   of    Shipper;     Delay;     Gratuitous   Carriage; 
Articles  Not  in  Carrier's  Custody, 
where  act  of  carrier  concurs   with  excepted  cause,   G4-€8,   353-356, 
360,  362,  364-367,  369,  371-375,  378,  427,  429,  430. 
burden  of  proof  as  to,  362,  439-444. 
When  liability  begins,  482^89,  491. 

and   see   Acceptance  of   Goods;    Delivery    to   Carrier;    Connect- 
ing Carriers, 
when  liability  ends,  411,  49(i-516,  600,  601. 
connecting  carriers,  432. 
of  passengers,  liability  of 

not  liable  without  fault,  326-329. 

degree  of  care  required,  30,  326-335,  491-493,  517. 

presumption  of  negligence,  327,  329,  336-344. 

burden  of  proving  negligence,  343. 

for  latent  defect  in  vehicles,  72,  329. 

where  passenger  disobeys  regulation,  106,  108,  111-112.  519,  520,  524. 

when  liability  begins,  81,  489-496 

and  see  Acceptance  of  Passenger, 
when  liability  ends,  82,  517-524. 

see,  alsb,  Liability  for  Loss,  Damage,  or  Injury, 
liability  for  act  or  default  of  others, 

of  express  company  for  default  of  railroad,  19.  249. 
of  railroad  for  negligence  of  car  builder,  246,  247. 
of  pull  man  porter,  247. 
of  co-user  of  tracks,  28,  249. 
of  lessee  of  franchise,   250. 
for  act  of  receiver,  251. 

of   trustee  for  bondholders,  251. 
limitation  of  liability, 
by  notice, 

what  constitutes   notice.  396.   401,  404. 
when  valid.  397.  400.  401.  40.3.  404.   457. 
when  invalid,  314.  395,  408,  422,  448,  449. 

shipment  with  notice  as  evidence  of  assent,  398,  399.  401,  422. 
by   consent, 

validity  of,  in  general,  407-414,   418-424,  460. 
when  no  option  of  other  terms,  433. 
when  on  unreasonable  conditiou,  468,  469,  471. 
statutory  restrictions  on,  412. 
agent's   authority   to   consent,  423. 

acceptance  of  bill  of  lading,  receipt,  or  ticket  as  evidence  of  con- 
sent.  411-422.   421.  425.  431.   433.   460-462. 
when  not  evidence  of.  417,  421.  422,  425,  430,  431. 
statutory  provisions   as  to,  415,  471. 
whether  special  consideration  necessary,  432-434. 
whether  special  consideration  presumed.  414,   432.  434,  455. 
effect  of  false  recital  of  special  consideration,  433,  434. 
limitation    strictly  construed.   434,   435,    439. 
when  intended  as  agreement  on  value,  462,  465. 
when  intended  to  cover  negligence.  76.  436-4.39. 
harden  of  proof  as  to  negligence,  439  411.  600. 
validity  in  case  of  negligence,  in  general,  437-438,  445-453,  460, 
462,  542. 


INDEX.  607 

[The  figures  refer  to  pages.] 

COMMON  CARRIERS— Continued. 

if   valid   by   foreign  law,   420,  450-451. 
of  agreement  as  to  value,  454-4(56. 

to  measure  damages  by  invoice  price,  465. 
limiting  recovery  unless  greater  value  stated,  466. 
increasing  evidence  to  prove  loss,  466. 
limiting  time  to  make    claim,   466-469. 
limiting  time  to  sue,    469,    471. 
by  statute, 

of  shipowner. 

for  valuable  articles  shipped  without  notice.  472. 

for  fire.  47.3. 

for  loss  without  privity  or  knowledge,  473. 

English  limited  liability  act,  476-478. 
for  error  or  fault   in   navigation   or   management,  479. 
duty  to  serve,  in  general,  16,  17,  525,  527,  574,  593. 
how  enforceable, 

action  for  damages,  16.  525,  527,  542,  559. 
mandamus,    527,   528,   582. 
limitations  on  duty  to  serve, 
tender  of  goods,  527. 
prepayment  of  charges.   539. 
extent  of  profession,   527. 
fitness  of   goods,   314,   536,   537. 
fitness   of  passengers.   526,    534,    536. 
purpose  of   transportation,   537,    538. 
whether  may  grant  exclusive  right 
to  do  express  business.  528-.")32. 
to  run   sleeping   cars,   532. 
to  maintain  cab  stand,   533,  .534. 
to  conduct  other   business,   533,  534,  537. 
adequacy  of  service, 

promptness.  .540.  542. 

facilities  and  accommodations.  .536,  540,  542,  545,  546,  552. 

duty  to  notify   if  unable  to  serve.   542. 

maintenance  of  stations  and  switches,  547. 

validity  of  regulations, 

in   general.  .551,   .553,   5.55. 

restricting  use  of  vehicles  and  stations,  519,  536,  550,  552, 

553. 
as  to  tickets  and  payment  of  fare.  227,  553-5.58. 
requiring  obedience  to  conductor's  orders,  227-228,  555-558. 
rates, 

must  not  be  excessive.  5.59,  561. 
what  constitutes  excessive  rate.   560.  561-567,  569. 
relief  against  excessive  rate,  5.59.  561. 
power  of  government  to  fix  rates.  565,  ,568. 
delegation  of  power  to  fix  rates,  572-573. 
power  limited  by  constitution.  568-571. 
when  rate  unconstitutional,  .568-572. 
determination  of  constitutionality  by  court,  573. 
remedy  when  rate  unconstitutional.   .571. 
state   cannot    fix    interstate  rates,   568. 
discrimination. 

in  rates.  257.  574-582,  587-594. 

in  service.  582-586. 

remedy  for.  when  unlawful,  581,  582. 

COMPENSATION   FOR   EXTRAORDINARY   SERVICES,    74,    75.   128,   305- 
Sll.  601. 
lien  for,  305,  307,  308,  311 

and  see  Charges  and  Advances. 


<>08  INDEX. 

[The  figures  refer  to  pages.] 
CONNECTING  CARRIERS, 

for  what  part  of  route  each  contracts,  232,  236,  240,  244,  245,  GOO 

duty  where  next  carrier  refuses  goods,  144.  514-516. 

when  liability  of  tirst  carrier  ends,  4o2,  512-516. 

when  liability  of  next  carrier  begins,  515. 

liability  of  road  where  loss  occurs,  251-255. 

presumptions  as  to,  see  Presumptions. 

CONSIGNEE, 

action  by,  ITS,  181. 

CONSIGNOR, 

action  by,  176,  177,  ISO,  ISl. 
when  agent  of  consignee,  177-179. 

CONTRACT   OF  CARRIAGE, 
defined,   20,  23,  34. 
how  evidenced,  411^31. 
obligation  of, 

dispatch,  42-45.  601. 

continuity  of  transportation,  47-50. 

route,  50-58,  60. 

seaworthiness,   67-72. 

care  of  goods  and  passengers,  73-85. 

what  goods  and  passengers  are  within  the  obligation,  88-112. 
excuses  for  nonfulfillment, 

impossibility,   113-116,   117,  127,   128. 

illegality,    116-119. 

act  of  foreign  government,  117,   118,  126. 

delivery  to  true  owner.  119.  121. 

stoppage  in  transitu.   122-124. 

seizure  under  legal  process.  124-127. 

sale  by  necessity,  129-131,  295. 

general  average  sacrifice,  131-134,  427. 

saving  life,  63,  64.  481. 

saving  property,  77,  481. 
making  delivery,  see  Delivery  ;    Notice ;    Usage ;    Owner  of  Goods, 
parties  to, 

master  of  vessel,  32,  229,  314. 

under  charter  party,  230-232. 

connecting  carriers,  203,  232,  236,  240,  245,  251. 

CONVERSION  BY  CARRIER, 

what  constitutes,  121,  143,  146,  153,  158,  269,  295,  435. 

DAMAGES, 

measure  of,  for  loss  of  goods,  94,  96.  601. 
for  breach  of  contract  to  ship,  274. 
for  consignee's  delay,  298-301. 
for  ejecting  passenger,  225,  227. 
in  action  against  carrier  by  vendor,  181. 
liquidated,   457,  458,  460,  465. 

DANGEROUS  GOODS,  296,   314,   536,  537,   601. 

DEAD  FREIGHT,  287,  301-304. 
lien  for,  301. 

DEGREE  OF  CARE  REQUIRED  OF  CARRIER  OF  PASSENGERS, 
see  Common  Carriers. 

DEGREES   OF  NEGLIGENCE, 

see  Negligence. 
DELAY, 

by  carrier, 

when  justifiable,  45,  56,  58,  63,  76,  481. 
when  excused,  42,  43,  45,  374,  378. 


INDEX.  609 

[The  figures  refer  to  pages.] 

DELAY— Coutinued, 

when  equiA-aleiit  to  deviation, 

in  law  of  iusurance,   tJO,  07. 

in  law  of  carriers,  63,  64,  67,  68,  76,  353-3.j6. 
when  it  ends  contract  of  carriage,  113,  115. 
loss  of  cargo  by,  as  affecting  right  to  freight,  2S1. 
liability  for  loss  of  time  by,  129,  299. 

liability  of  common  carrier  for  damage  to  goods  by,  37-4-379. 
duty  of  common  carrier  to  give  prompt  service,  540,  542. 
by  shipper  or  consignee,  in  general,  298,  299,  301,  374. 
who  liable  for,  298. 
excuses  for,  299. 
lieu  for,  305. 
duty  to  provide  berth  for  unloading,  298. 

and  see  Demurrage. 

DELIVERY, 

to  carrier, 

what  sufficient  to  impose  liability,  88,  112,  192,  482-489,  491. 
as  passing  title,  152,   154,   155,   176. 
by  carriei*, 

place  and  manner  of, 

what  delivery  required,   135,   137,    138,   140,    141,    142,   263,  264, 

266,  497,  501-503.  50.5-507.  545. 
what   search   for  consignee,    138,   498. 
precautions  against  misdelivery,  147,  189,  300. 
disposition  of  goods  not  accepted.  143.  144.  109,  497,  514-516,  601. 
where  original  destination  changed,  148,  149. 
of  baggage,   510. 
to  whom  delivery  should  be  made, 
who  is  consignee,  103-175. 
delivery  to  person  not  consignee, 
true   owner,   119,   121,    193. 
not  true   owner,   156,    161,   168-171. 
deliverv  at  shipper's  order  to  person  not  entitled  to  goods,  151, 

1.53,  154,  156,  160.  166,  174. 
nonproduction  of  bill  of  lading  as  notice  of  outstanding  claim, 
1.").    156. 
liability  for  misdelivery.  147.  148,  158,  167. 
misdelivery  by  carrier  as  warehouseman,  169. 
confusion  of  goods,  163. 

payment  of  freight  as  condition  of  delivery,  202. 
delivery  to  end  lien  for  freight.  285-287. 

excuses  for  not  delivering,  see  Contract  of  Carriage,  excuses  for  nonful- 
fillment. 

DEMURRAGE. 

see.  also.  Delay, 
in  general,  299-306. 
defined,  304.  305. 
who  is  liable  for,  .300,  301. 
lien  for,  301,  305,  .307.  308. 
maritime  lien  for,  304. 

DISPATCH. 

carrier's  obligation  as  to.  42.  4.3.  44,  55,  299. 
shipper's  obligation  as  to,  298,  299. 

and  see  Delay;   Demurrage. 
DEVIATION, 

what  constitutes,  50-55,  60. 

change  of  vehicle  as,  58,  59,  61,  62. 

when  departure  from  route  justifiable.  50,  51,  S.^i,  59,  63,  481. 

effect  of  on  liability  for  loss  by  accident,  50,  51,  58-61. 

loss  by  act  of  God,  60. 
Green  Carb. — 39 


610  INDEX. 

[The  figures  refer  to  pages.] 

DEVIATION— Continued, 

loss  excepted  in  bill  of  lading,  50,  60,  (!2. 

loss  after  resinning  i-oute,  G2. 

loss  inevitable  tbougli  no  deviation,  61,  62,  427. 
whether  conversion,  62. 
delay  as   deviation,   see   Delay. 

DISTRICT  MESSENGER  COMPANY, 
whether  a  carrier,  32. 

EMBARGO,  113,  117. 

EXPRESS  COMPANY, 
as  carrier,  19. 

liability  of  railroad  company  to,  95,  253,  388. 
liability  for  default  of  railroad  company,  19,  249,  253. 

EXPULSION  OF  PASSENGER, 

for  failure  to  show  proper  ticket  or  pay  fare,  86,  206.  212,  214,  215,  223, 

226,  227. 
when  unwarranted,  86,  202,  204,  209,  218,  220.  223,  220. 
resistance  to,  225,  227,  228. 
damages  for,  225,  227. 

FARES, 

when  payable,  284. 

conditioned  on  completion  of  journey,  283-284. 

obligation  to  pay,  where  no  seat,  49,  87. 

on  changing  cars,  50. 
through  fare  greater  than  local  fares,  49. 
lien  on  baggage  for,  287. 
detention  of  passenger  for,  287. 

FEDERAL  COURTS, 

when  refuse  lo  follow  state  courts,  196,  2.39. 

FERRYMAN, 

liability  of,  386,  387. 

FORWARDER, 

obligation  of,  21,  22. 

who  is,  21,  23,  233,  237,  292. 

FREIGHT, 

amount  of,  where  no  express  contract,  257,  384. 

where  contract  differs   from  statutory  rate,  257. 

where  payable  pro  rata,  270. 

where  apportionable,  280. 

where  carrier  ignorant  of  article  carried,  99,  601. 

where  carrier  misled  as  to  article  carried,  99,  287. 
who  liable  for,  2.58-262,  270,  275. 
when  earned  or  payable, 

completion  of  journey.  262.  266,  267,  275,  278,  280,  303,  304,  309,  383. 

readiness  to  deliver,  262,  287,  383. 

retaking  by  shipper,  58,  271,  273,  274,  303,  304. 

capture,  274. 

refusal  to  ship.  274. 

transhipment,  58,  128. 

abandonment  of  journey,   272,   273. 

goods  damaged,  277,  279. 
set-off  for  damage,  277. 

goods  not  worth  freight,  274,  276. 

not  arriving  in  specie,  274.  276,  277. 
lost  by  inherent  defect,  277-282. 
increased  in  transit,  282. 


INDEX.  611 

[The  figures  refer  to  pages.] 
FREIGHT— Continued, 

part  of  shipment  lost,  270,  279,  280,  282. 
when    freight    is    payable    pro    rata,    58,    75,    26&-270. 
paid  in  advance,  283,  284. 

wrongfullj'  collected,   145. 
common-law  and  statutory  restrictions  on  freight  rates,  see  Common  Car- 
riers,  rates,  discrimination, 
lien  for,  in  general,  284,  285,  287. 
when  lien  attaches,  272. 
extends  to  whole  shipment,  284,  285. 
not  to  separate  shipment,   136,  287. 
none  where  delivery  is  to  precede  payment,  287. 
what  constitutes  contract  to  deliver  without  payment,  287. 
on  goods  shipped  without  authority,  288-291. 
what  constitutes  shipment  without  authority,  288-295. 
how  ended, 

by  delivery,  285-287. 
by  waiver,  286,  287. 
power  to  sell  under,  294-295. 
whether  private  carrier  has,  284,  285,  287. 
maritime  lien  for,  see  Maritime  Lien. 

GENERAL  AVERAGE,  131-134,  427,  435. 

GRATUITOUS  BAILEE, 

liability  in  contract,  11,  14,  15. 
in  tort,  10. 

GRATUITOUS  CARRIAGE, 

what  is,  381,  382-384,  445,  545. 

liability  of  gratuitous  carrier  of  goods,  9,  10,  12,  13,  14,  112,  314,  320, 
379-382. 

of  passengers,  381. 
limitation  for  liability  for  negligence  in,  404,  451. 

and  see  Negligence,  degrees  of. 

INHERENT   VICE, 

see  Quality  of  Thing  Carried. 

INNKEEPER, 

lien  of,  on  stolen  goods,  291. 

liability  of,  389,  391. 

whether  shipowner  liable  as,  389-392. 

INTERSTATE  COMMERCE  ACT. 

provisions  of,  257.  559.  561,  562,  582,  583.  585,  588,  591,  592.  593. 

construction   of,   559,   564,   566,    567,   583-594. 

effect  on  power  of  court  to  hold  rate  excessive,  559. 

INTERSTATE  COMMERCE  COMMISSION,  561,  562,  563,  588-589. 

JUS  DISPONENDI, 

see  Bill  of  Lading,  form  and  transfer  of. 

LIABILITY  FOR  LOSS,  DAMAGE,  OR  INJURY, 
to  goods, 

in  general,  see  Care  of  Goods ;    Common  Carrier. 

goods  not  accepted,  88,  93. 

goods  accepted  in  ignorance  of  character,  95,  96,  99.  456,  601. 

carrier  misled   as  to  character  of  goods,  96-99,   103,   104,   370,   374, 

402,   455-457. 
articles  not  proper  baggage,  see  Baggage. 
Bale  by  necessity,  77,  129,  295. 
latent  defect  in  vehicle,  72. 
general  average  sacrifice,  132,  427. 


612  INDEX. 

[Th«  figures  refer  to  pages.] 

LIABILITY  FOR  LOSS.  DAMAGE,  OR  INJURY— Continued, 
disobedience  of  instructions,  148-150. 

bow  liability  affected  by  owner's  negligence,  374-375,  387,  380. 
liability  for  refund  of  purchase  price  collected  for  damaged  goods, 
144. 
to  persons, 

to  passengers  in  general,  see  Care  of  Passengers, 
to  others  rightfully  at  stations  or  on  vehicles,  lOG. 
to  persons   seeking   transportation, 
without  acceptance,  89,  DO,  91. 
with  intent  to  evade  fare,  108,  110. 
in  unauthorized  position  in  vehicle,  89,  90,  92. 
where  several  persons  are  concerned  in  carriage, 

liability  of  express  company  for  railroad  company,   19,  240. 
of  railroad   for  receiver,  lessee,  etc.,   249,  250. 
of  caiTier   for  negligence  of  carbuilder,  246,  247. 
of  carrier  for  negligence  of  Pullman  porter,  247. 
of  subcontractor  for  carriage  to  shipper,  251,  253,  2.54. 
of  subcontractor  for  carriage  to  original  carrier,  95,  253,  254. 
under  charter  parties,   230-232,   249. 
LIEN, 

see  Charges  and  Advances;   Dead  Fi'eight;   Demurrage;    Fares;    Freight. 
LIMITATION  OF  LIABILITY, 
see  Common  Carrier. 

MARITIME  LAW, 

how  far  law  in  United   States.  476. 
limitation  of  shipowners'  liability  under,  477. 

MARITIME  LIEN, 

in  general,  287,  304. 
for  freight,  287,  288. 
for  demurrage,  304. 

NDGLIGENOE, 

theory  of  degrees  of,  9,  10,  12-14. 

degrees  of  negligence  in  Roman  law,  13. 

gross  negligence  defined,  9,  12,  13,  14,  76,  382. 

contributory,  of  passenger,  330. 

of  shipper,  how  far  it  relieves  carrier,  374,  375,  387,  389. 

when  cai'rier  not  liable  for,  see  Liability  for  Loss,  Damage,  or  Injury. 
NOTICE, 

to  consignee,  of  arrival,  whether  requisite,   137,  142.   143,  263,   503,  504, 
511,  512. 

to  consignor,   where  consignee  does  not  accept,   144. 

what  facts  amount  to.  174,  396. 

limitation  of  liability  by,  see  Common  Carrier. 

OWNER  OF  GOODS, 
action  by,  177,  178. 
right  to  control  disposition  of  goods,  119,  121,  148-151,  153,  154,  193. 

PARTIES, 

to  action  for  damage  to  goods, 

who  may  sue,   176,   181,   182. 

who  may  be  sued,   see  Connecting  Carriers ;    Contract  of  Carriage ; 
Liability  for  Loss,  Damage,  or  Injury, 
to  action  for  freight  or  demurrage,  see  Freight ;    Demurrage, 
to  contract  of  carriage,  see  Contract  of  Carriage. 

PASSENGERS, 

see  Acceptance,   of  passenger;    Care  of  Passengers;    Common   Carrier; 
Liability  for  Loss,  Damage,  or  Injurj- ;    Negligence. 


INDEX.  613 

[The  figures  refer  to  pages.] 
PASSAGE  MONEY,   283-284,  287. 
PERILS  OF  THE  SEA,  347,  43G. 

PRESUMPTION, 

as  to  whether  contract  is  for  through  transportation,  232,  23G,  240. 
as  to  place  where  damage  occurs,  255,  256. 

as  to  negligence  of  common  carrier  of  passengers,  327,  329,  336-344. 
as  to  consideration  for  release  from  liability,  414,  455. 
distinguished  from  prima  facie  evidence,  236. 

PRIVATE  CARRIER, 

see  Carrier;    Care  of  Goods;    Contract  of  Carriage;    Liability  for  Loss, 
Damage,  ot  Injury ;    Freight,  etc. 

PUBLIC   ENEMY,   113,  115,  315,  356-358,  435. 

QUALITY  OF  THING  CARRIED, 

loss   by,  38,   281,   282,   358-366,   377. 

as  affecting  claim   to   freight,   281,  282. 

REGULATIONS, 

see  Common  Carrier,  duty  to  serve,  adequacy  of  service. 

REPLEVIN, 

see  Seizure  under  Legal  Process. 

RES  IPSA  LOQUITUR,  342. 

SALE  OF  GOODS, 

carrier's  right  to  sell,   129-131,   295. 
indemnity  to  owner  for,  129. 

SEAWORTHINESS,   67-72,   480,  481. 

SEIZURE  UNDER  LEGAL  PROCESS, 
as  excuse  for  nondeliveiy,  124-127. 
duty  of  carrier  to  protect  owner's  interest,  125,  126. 

SET-OFF, 

of  claim  for  damage  against  freight,  277. 

SHERMAN   ANTI-TRUST   ACT,   564. 

SHIPPER'S  OBLIGATION, 

see  Freight;    Dead  Freight;    Demurrage;    Dangerous  Goods;    Compensa- 
tion for  Extraordinary  Services. 

SHIPOWNER, 

when  common  carrier,  38,  39,  392. 

whether  liable  as  innkeeper,  389-392. 

liability  of,  when  private  carrier,  35,  36,  313,  315. 

liability  of  under  foreign  law,   316. 

statutory  limitations  of  liability  of,  472-481. 

SLEEPING  CAR  COMPANT, 

whether  carrier  or  innkeeper,  33,  391. 

duty  to  care  for  passengers  and  their  effects,  82,  392. 

STOPPAGE  IN  TRANSITU,  122-124,  179. 

STOP-OVER,  47,  49,  203. 

'T  T  P  T\  F*  T  ^ 

nature  of,  204.  206-208,  214,  217,  221,  222,  225,  226-228. 

for  what  time  good,  44,  204-206. 

for  what  journey  good,  203,  204. 

stop-over  on,  203. 

transferability,  209-212. 

lost  ticket,  212-214. 

wrong  ticket,  215,  218-228. 


^14  INDEX. 

[The  figures  refer  to  pages.] 

TICKETS— Contiuued, 

defective  ticket,   220,  228. 

rights  of  carrier  and  passenger  when  ticket  invalid,  206,  218,  225,  22G-228, 
557-558. 

when  terms  of  ticket  evidence  contract,  243,  418. 

over  connecting  lines,  203,  240,  244. 

regulations  as  to  validity  of,  554-556, 
TOWAGE, 

undertaking  of,   26.   27. 

deviation  by,  62.  63,  481. 

TRANSHIPMENT,  58,  75,  127,  128. 
TRESPASSER, 

duty  toward,  89,  90,  91,  92,  108,  110. 

USAGE, 

as  affecting  carrier's  obligation,  136,  137,  139,  140,  159,  400. 

WAR, 

effect  on  contract  of  carriage,  116-119. 


WB8T  PUBLIBHINQ  CO.,  PBIKTERS,  BT.  PAUL,  mSN. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


D    000  760  321 


